Her Majesty the Queen - v. -, 2021 SKPC 62

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2021 SKPC 62 Date: December 3, 2021 Information: Y365382 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - B.G.L. Appearing: Mr. G. Bogutskiy For the Crown Mr. R.

Simaluk For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act, or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. J UDGMENT B.D.

HENNING , J [ 1 ] The Accused is charged with two counts of sexual assault and two counts of sexual touching contrary to sections 251 and 271 respectively of the Criminal Code , proceeded with under the Youth Criminal Justice Act , alleged to be committed against L.F. on October 15, 2017 and August 23, 2019. The charges are in ‘sets’ of one sexual assault and one sexual touching on each of those dates and are alternative charges relating to one incident on each date. The trial occurred at Swift Current on August 30, 2021. The Complainant was aged 16 at the trial date.

Four Crown witnesses and two defence witnesses gave evidence.

Evidence [ 2 ] The first witness was Cst. Anthony Cuerti who was assigned the police investigation. He spoke to the Complainant on October 30, 2020 and took a statement in a police interview room at 3:30 p.m. which was recorded by sound and video. He said that the Complainant’s mother was nearby initially but not present during the interview. He introduced the video that was viewed by the court and by the Complainant.

It was adopted by the Complainant and admitted in due course into evidence and marked as an exhibit, but with limitations on the parts that could be accepted as evidence, namely, only the parts relating to the actual incidents of alleged sexual assault or touching. Admission into evidence is not, or course, acceptance of the evidence, and more comments on the video statement and its value follows below. [ 3 ] The next witness was the Complainant, L.F., who identified herself in the video. Such videos are sometimes of considerable value in assisting a complainant who has difficulty in testifying.

However, that was not the case here and the Complainant was able to give her evidence from a ‘soft room’ by video link to the courtroom in a calm and clear manner. The Complainant had little need of adopting the recorded statement as her evidence in court was superior to what is contained in the video statement, in my opinion. However, she viewed the video and did adopt it as her evidence and proceeded to go through the evidence again in court. [ 4 ] The police interviewer during the recorded statement was not skilled in questioning and his questions did not elicit a good narrative.

He utilized leading questions at some points. Apart from deficiencies in eliciting the statement, the audio was poor at times and the camera was positioned on the ceiling to give a picture of the overall room and the tops of the participant’s heads, but very little of their faces. These comments regarding the video, however, do not affect the Complainant’s credibility. However, I prefer the quality of the oral evidence given in court for these reasons, rather than the Complainant’s blanket adoption of what is discernible from the video.

The Complainant did not have difficulty in giving her evidence, except at one point which she got over after a brief adjournment. Her memory was still good on details. [ 5 ] In court, the Complainant indicated that she lived a short distance outside of Swift Current with her parents. She explained that she had met the Complainant at a church bible group, a class type of setting. The Accused had a sister whom she became acquainted with and she herself had a brother named J. and the two sets of siblings were all part of this church group. She recalled they had met in grade seven sometime in 2017.

She explained how they had spent time together from October 2017, meeting at their parent’s houses. She had described two sexual touching incidents in the video which she reiterated in court. [ 6 ] The first incident occurred while clothed in pajamas, but she could not recall more details of clothing. Her brother J. was a friend of the Accused who was staying over and was sleeping at her parents’ house. In the middle of the night she was awakened by what she described as a flashlight fixed to a hat. She did not know what was “going on”.

There were hands on her “boobs” and she could not say for how long that persisted. She said to the person “what are you doing”. The person then replied “I don’t know” and he left. The hands were under her top, a purple T-shirt. When this person left she fell asleep again after a time. She said she felt “terrified”. [ 7 ] The second incident occurred in August, 2019. It was during the week of ‘PBS’, an event later elaborated on, sponsored by the church both the Accused’s and Complainant’s family were involved in. It occurred at her house in her upstairs room.

The Accused was staying over downstairs with her brother. At this point the Complainant did become emotional but regained control after a short break in court. She went on to narrate that she woke up with “his fingers being put into her vagina” and that she did not know what was going on. She was confused and thought initially it might be a dream. She could not recall what, if anything, that she said – she said that maybe she said “what are you doing?”. This person then tried to hide under her bed and then “sneak” out of her room. He left and she heard the toilet flush.

She then got up and locked her bedroom door and went back to bed. She said she heard “him” try to get into her bedroom again. She did not go to sleep again for a while. [ 8 ] The Complainant stated that she never told anyone of this until she spoke to the police officer. She recounted how she had trouble afterward sleeping and the following year approached someone in her church organization whom she called a ‘youth leader’ to ask that person to pray for her. Her pastor at the church became involved when more details were given to the youth leader and he advised her to go to the police.

She again referred to the video for details and asserted that the police interviewer “did not put words into her mouth”. She concluded direct examination by saying that she never consented to any touching. [ 9 ] Defence counsel elicited details in a number of areas that were not part of the original direct examination. The Complainant described the respective families of the Accused and Complainant. Her best friend was named B. who was a twin to B.G.L., and her brother J. was one year younger than herself. Regarding the first incident, she provided details of the sleeping area that she was in.

It was not her upstairs room, but a basement room where she and B. slept on a mattress on the floor. The Accused and J. may have been sleeping in the basement also, but they sometimes slept upstairs in a bedroom. She referred to a ‘curtain’ that created a room in the

basement. She was not clear where the boys might have been sleeping. [ 10 ] The Complainant again stated she was wakened by someone touching her breasts and was startled. She could not recall in court exactly what she said, but felt it was to the effect of “stop”. B. did not wake up and she did not tell her anything. She was not sure where J. was sleeping and she did not give indication of where B.G.L. might have been sleeping either. This was regarding the first incident which she said occurred in 2017. [ 11 ] The second incident in August 2019 took place in her bedroom when she was alone.

She said that she had on “layers of clothing” – a T-shirt, underwear (panties), PJ bottoms, and was under two blankets. Her parent’s bedroom was on the other side of the hallway. She did not shout when awakened, and cannot now say what she said other than stating that it was “stop” or equivalent. She was awakened by his fingers being inserted into her vagina. She was confused but realized that it was not a dream. She said that once and “B.G.L. stopped”. This may be the first reference to the Accused by name in recounting these incidents.

Throughout, it appears that B.G.L. was considered the alleged perpetrator of the incidents. This is not to conclude that he was the perpetrator, but it appears that it was assumed by all participants in the trial that this was the intent and effect of her evidence – that she concluded that B.G.L. was the perpetrator. She was not examined on that point. [ 12 ] The Complainant said that she and B.G.L. were leaders in a vacation bible school at that time.

She did not hear B.G.L. walking around after the second incident terminated. [ 13 ] She gave more details of a hat with a flashlight on it which was worn during the first incident. She also said at the time of the first incident B.G.L. may have had a “crush” on her, but she was not certain. She said that after the second incident she could not sleep for two or three weeks. That developed after a gap in time.

She later approached a group leader in her religious organization named J.P. who then brought in their coworker named P.J. which led to police involvement. [ 14 ] The Complainant said she did not tell anyone until 2020 because she felt that she would not be believed and was “scared”. She was able to fix the date of the second incident as August 23, 2019 because of its connection with the church bible school. Friendship with the L. siblings continued and there were sleepovers after that incident of alleged assault in 2019.

The incidents came to the attention of others the following year, October, 2019, which was when she had approached a church member asking her only to pray for her initially, without providing further information. The formal complaint was made October 30, 2020. There is, of course, no ordinary, typical or common reaction to such incidents and every assault victim and case develops in a unique way. [ 15 ] The next witness was J.P. who was the person first approached by the Complainant concerning these incidents. She stated she knew some of the persons from church groups, but not the Accused.

She described the Complainant as crying when this discussion took place which took less than one half-hour. The Crown closed its case with these three witnesses. [ 16 ] The defence called evidence beginning with the Accused, B.G.L. He gave his current and past living arrangements and indicated that he would graduate from the Swift Current Composite High School in the following academic year. He gave evidence regarding the first alleged incident which he denied. He said that J. , the Complainant’s brother, was a long-time friend who was his only close friend. He described ‘sleepovers’ at each other’s houses.

His sister B. was L.F.’s friend at the time of the incidents. These friendships have since been terminated. He described the sleepovers beginning in about 2017 and involved using couches in the basement. He said that only once did his sister sleep over on the same night that he did and he could not recall the exact date, but he said that she had slept upstairs on a couch in the living room. L.F. also slept upstairs. He denied ever having a flashlight attached on his head and had no idea if J. had such a thing.

He said that L.F.’s parents had slept in a bedroom on the main floor. [ 17 ] The Accused spoke of having a brief ‘crush’ on L.F. when his friendship with J. was just beginning. He described this as a brief thing that he gave it up quickly as it could not develop or go anywhere. He stated clearly that there was no continuing interest in 2019 and L.F. was just his friend’s sister. Crown counsel examined extensively on this point with the intent of bringing out that it was a much longer, more intense and continuing attachment.

When the witness finally was strong in denying this, Crown counsel used that response in argument as a sign of having made a point in that regard that detracted from the Accused’s credibility. In hearing the evidence, I had the opposite conclusion and felt that the persistent questioning did not in any way strengthen the Crown’s position on that point; indeed, if anything, it achieved the opposite. [ 18 ] The second incident was closely tied by the Complainant to the bible camp that both she and the Accused had been involved in at that time.

She indicated that a sleepover had occurred on the evening before the last day of that camp. She was able to pinpoint the

touching incident as being August 23, 2019. She had stated earlier that she had on several layers of clothing and he had inserted his fingers into her private parts which the Accused denied. The Accused stated that a sleepover would not have occurred during the bible camp as they had duties there and needed good rest which would not have been the case at a sleepover. [ 19 ] The Crown examined the Accused extensively on all details of the friendships, sleepovers, layout of the house, conversation the two boys might have and what his reactions past and present to L.F. were.

The crush referred to was gone over extensively as was the Accused’s emotional attachments, attitudes and reactions. Notwithstanding extensive examination, I did not perceive any information of significance that would give weight to the allegations of sexual assault and/or touching. This was denied be the Accused with explanations for why it would not occur in August or on the earlier incident. He was not hostile or disrespectful in answering, although the questioning was persistent. [ 20 ] The next defence witness was N.L., mother of the Accused.

She indicated that she and her husband were now separated but on good terms and that they had five children together. She gave further explanation and details of the church bible camp that the children were assisting with and which she was familiar with. She had driven B.G.L. there each day.

She elaborated that a sleepover would not have been suitable the day before the end of the camp because of the need to be rested for the camp and because the family was intending to go to Saskatoon the same day following the end of the camp. [ 21 ] In cross-examination, N.L. explained the many activities the children would stay up doing for a large part of the night while at sleepovers. She confirmed that connections with other parents in their group and with her children had declined in the past year. ARGUMENT AND DISCUSSION [ 22 ] The defence presented argument first.

He pointed out that the Accused was 13 at the time of the first incident and 15 at the time of the second and under 18 at all times related to the case. [ 23 ] The defence raised the argument that the intruder in the first incident at the Complainant’s parents’ residence, where the girls were sleeping on the same mattress on the floor, did not waken the other girl in spite of light and conversation that was described. He suggested that waking up did not happen because the incident did not happen.

With respect to the second incident which was clearly tied to a specific date and incident, counsel argued that it was not credible as a date for sleeping over based on the evidence of the Accused and his mother. He again argued that the second incident did not occur. [ 24 ] The second incident was a more extensive and intrusive assault in an intimate area that could not be accessed and perpetrated without going through two layers of blankets and several layers of clothing.

The Complainant was not wakened by movement of blankets and penetration of considerable clothing, but only at the point of the intimate touching of her vaginal area. This point was not raised by the defence in argument, but it is a point that occurs to the Court as possibly significant. [ 25 ] The Crown argued pointing out that the charges were both sexual assault and sexual touching, alternatives based upon the same actions.

It was argued that the L. family did have flashlights, and the Court took notice of the fact that such are common and inexpensive items that are easy to obtain, so a flashlight attached to a hat or cap was possible using some type of tape to fix it in place. The Crown also suggested that the first incident was sufficiently brief and that it was credible that the other person present was not wakened. [ 26 ] With respect to the second incident, the Crown emphasized opportunity by the Accused when using the washroom which he admitted doing that would have taken him in proximity to the Complainant’s room.

That would also have taken him in proximity to the parents’ bedroom. The Crown argued that the Accused’s response to his questioning in court was emotional and disclosed guilt. I do not accept that

interpretation and I find that the Accused’s manner in court was polite and unassertive and only after repeated suggestive, and at times, aggressive, examination did he become stronger in his denial of the incidents. [ 27 ] There is no independent corroboration of either the evidence of the Complainant or of the Accused with respect to the alleged incidents themselves, other than the Accused’s mother’s evidence that a sleepover would not have been allowed during the bible camp and their trip planned for the following day. This is only indirect support of the Accused’s evidence.

However, there are many details in the narrative and circumstances of the alleged offences that require examination.

[28] The case is one which involves the often referenced principles of R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)]. In R v Knox-Moffatt, 2018 SKQB 142, Elson, J applied those considerations in the context of a sexual assault case which alsocontains other useful observations concerning the weighing of evidence in such a context. In the present case there is no issue of consentto activity. The only issue is the credibility of the Complainant concerning whether the incidents occurred.

The Complainant has givenevidence of two incidents that would, if accepted, meet the test of sexual assault, which was not contested by the defence. The defenceposition is that the incidents were invention and never occurred. This is a direct, unresolvable conflict in the evidence. [29] Under the well accepted principles in W.(D.),as well as principles of long standing developed in many cases, the followinggeneral legal principles apply: a. The onus of proof is on the Crown to prove every element of the offence beyond a reasonable doubt; b.

The defence has no onus to prove anything and need only raise a reasonable doubt on an essential element of acharge; c. Where there is a direct conflict of evidence on an essential point it is a serious error for the Court to weigh thecompeting evidence and determine the ‘better’ or ‘more credible’ version – it is not a ‘weighing’ process. d. All evidence is considered on its’ own merits and must be rejected or accepted based on rational analysis.

Further, theevidence as a whole must be considered and individual points are not to be parsed and evaluated in isolation in reaching the ultimate decision, although circumstances of cases vary greatly and singular and important points may receive particularconsideration, and a single issue may determine a case; e. The evidence presented by the prosecution may for cogent reasons be accepted or rejected, and similarly, defence evidencemay be accepted or rejected for similar reasons. If the Court is able to reach a clear conclusion, that conclusion will determinethe case. f.

Nonetheless, if the defence evidence is not accepted in whole, or even in part, even if prosecution evidence iscredible, if the defence has presented evidence with sufficient credibility to be capable of belief that would negate an essentialelement of the charge, that may raise a reasonable doubt. The foregoing is not a definitive

interpretation of the principles of W.(D.), but is a practical guide to evidentiary evaluation that has beenaccepted since long before that case. A more detailed restatement of the requirements of proof are contained in another sexual assaultcase considered by Elson, J, R v C.J., 2020 SKQB 318 at paragraph 35: [35] The 2017 trial judgment of the Ontario Superior Court of Justice, in R v Nyznik, 2017 ONSC 4392, 350 CCC (3d) 335 [Nyznik],Molloy J. acknowledged this controversy.

Even so, she discussed the importance of the reasonable doubt standard in the prosecution ofall criminal offences, including sexual assault. For present purposes, it is unnecessary to recite the entire discussion. An excerpt that doesbear repeating is the caution Molloy J. sounded at para. 12 of Nyznik. In that excerpt, Molloy J. discussed how a trier of fact wouldmisapply the reasonable doubt standard by simply preferring one conflicting version over the other, in the absence of any additionalevidence to resolve the conflict.

In this respect, she said the following: 12 First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart fromthe complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against theother -- the classic “he said/she said” scenario. In that situation, it would be wrong for the trial judge to decide the case based on whichis the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond areasonable doubt.

The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen inthe context of all of the evidence, raises a reasonable doubt as to his guilt. It is possible that the judge might not fully believe thedefendant’s version of the events, and might find the complainant’s version to be more credible, but still be uncertain as to what actuallyhappened.

In that situation, there is a reasonable doubt, the benefit of which must go to the defendant, even where the complainant’sstory is more plausible or more believable than that of the defendant. [30] In the present case I find that the Complainant and the Accused both gave their evidence in court in a clear and reasonable

manner without obvious exaggerations or inconsistencies. The Complainant gave her evidence well and so did the Accused. Giving evidence well does not, however, determine the issue of credibility of a witness. The Complainant’s narrative must be examined for cogency and credibility in its many details. The Accused must only raise a doubt with respect to her evidence which comprises the Crown case.

This doubt, if it is found by the Court, must be based upon consideration of all of the evidence available. [ 31 ] There are, in my opinion, some aspects of the Complainant’s narrative of both incidents which must be considered critically. Not one of these points is decisive to determining the Complainant’s credibility, but they must be considered in their totality and cumulative effect in assessing her evidence. a. The first incident occurred in close proximity to another person in the same bed. Words were spoken and a light was present and that person was not wakened by the occurrence.

That occurrence was brief, but also included the entry and exit of a person from the immediate area of the bed space in addition to the words and actions. b. The second occurrence is specifically tied to a youth camp which the Accused and his mother both stated would make a sleepover where the participants stay up much of the night doing various games and entertainments unsuitable, especially as a family trip was also planned for the following day.

Staying up a large part of the night would make participation in those activities difficult and N.L. was credible in suggesting that she would not approve of such a thing. I accept the evidence on this point. c. The second incident involved actual digital penetration of the Complainant’s vagina or vaginal area. That bodily area, including surrounding parts, are very sensitive and there was no awakening until a significant degree of penetration or manipulation had occurred.

Further access to the vaginal area could only be obtained by any other person by disturbing bedclothes that included two blankets, as well as several layers of clothing. Such a thing is difficult to conceive doing without disturbance to the sleeping person at least some moments, a significant time in such an incident, before digital penetration could occur. CONCLUSIONS [ 32 ] In considering the above I find that there is a question of credibility that affects the complaints by L.F.

Not one of these points is decisive in raising a doubt regarding her evidence, but weighing these points as a whole against the denial of the incidents by the Accused, I find that I must conclude that the Accused’s denial of the existence of these incidents with him as the perpetrator is capable of belief. As a result, I have a reasonable doubt as the veracity of the Complainant’s evidence. I do not reject the Complainant’s evidence as not credible. I do not accept the evidence of the Accused’s denial as a firm evidentiary conclusion.

However, I find that his denial of the incidents complained of to be capable of belief because of the factors that are set out in the subparagraphs under paragraph 29. [ 33 ] These concerns do not go to reliability which might be affected by memory or many other factors.

The considerations go to the facts and circumstances internal to the narrative which was not given in any hesitant or confusing manner that would raise questions of her ability to observe, recall and recount the incidents. [ 34 ] The charges stand dismissed on the basis of reasonable doubt as to the credibility of the Complainant’s evidence of sexual assault and touching for the reasons enunciated above. Dated at the City of Swift Current, the Province of Saskatchewan, this 3 rd day of December 2021.

__________________________ Henning, J