Her Majesty the Queen - v. -, 2013 SKPC 213

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 213 Date: December 23, 2013 File: 24472276 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - J.T. Mr. Steve Kritzer For the Crown Mr.

Adrian McBride For the Defence Note: An Order pursuant to s. 486.4 of the Criminal Code of Canada has been made directing that any information that could identify the complainant or witness shall not be published in any document or broadcast or transmitted in any way in respect of the proceeding. ____________________________________________________________________________________________ JUDGMENT L.A. MATSALLA , J ____________________________________________________________________________________________ [ 1 ] The accused, F.D.J.T., is more commonly known as J.T. and I will refer to him as such. [ 2 ] Mr.

J.T. is charged that he did, on March 1 st of this year: 1. commit a sexual assault on K.S. contrary to section 271(1) of the Criminal Code , and 2. for a sexual purpose touch K.S., a person under the age of 16, directly with a part of his body, to wit his penis, contrary to

section 151 of the Criminal Code .

The Crown elected to proceed by way of indictment on both charges and the accused elected trial by this Court. Background [ 3 ] It is important to place the facts in this case in context. [ 4 ] Both parties are aboriginal persons who live on the N[...] First Nation in the Maple Creek district of this Province. The accused and the complainant are well acquainted with one another - in fact their mothers are cousins. The accused lives with his grandmother in a trailer and K.S., along with her father and her young cousin, live in her grandmother’s house.

She has a twin sister and another sister who lives in a trailer near the house. At the time of the alleged offences, yet another sister (who I shall refer to as C.Y.S.) was in a relationship with the accused and they had a two-year-old daughter. It was not made clear as to where C.Y.S. was residing at the time of the alleged offence.

It should also be noted that the evidence disclosed that there appeared to be some animosity between K.S.’s family and the family of J.T. arising out of the issue of access to the two-year-old child and, in particular, there was a dispute as to who should be entitled to the Child Tax Benefit for the child. The complainant told the Court that she did not get along well with J.T. before the incident and in cross examination, she more specifically said that she did not like him because of the way that he had treated, C.Y.S.

It appears that she was aware that he had had other liaisons with other women while he was in the relationship. Nonetheless she told the Court that since the incident she no longer feels the same way about him. The Evidence of the Crown [ 5 ] A policeman testified that on June 4, while J.T. was in custody, he obtained a statement from him. The Crown’s main witness was K.S. It is common ground that she was 15 years of age on the date of the alleged incident and that she was 16 at the time of trial. [ 6 ] Ms.

S. testified that on February 28, 2013, she had returned home from school, picked up her laundry and, with her grandmother, made her way to Maple Creek and then to the residence of a “Jillian” (whose last name was not made clear to the Court). At about 5:00 p.m. J.T. was dropped off outside the residence and K.S. testified that she could tell he had been drinking. She said that she stayed away from him when he drinks. K.S. went to the laundromat with her grandmother and, after completing the laundry, they met K.S.’s father and then returned to the residence on the N[...].

Later K.S. went into town with others to pick up J.T. and C.Y.S. from a jigging class. I take the class to be a cultural dance class. She went on to say that J.T. and C.Y.S. were “hammered” when they were picked up. [ 7 ] Upon returning to the residence, she watched television. Then, at about 9:00 p.m. she went to C.A.S.’s trailer where she met J.T. and her two older sisters. She had a mickey of vodka in her purse. She recalled that she sat between her sisters and they drank the vodka out of her bottle and from another similar bottle.

She told the Court that she had had only a little bit and she felt sober when, after midnight, she made her way back to the house however, in cross examinations she said that she was “hammered” when she left the trailer. She tripped and fell and recalled that some dogs came to her and jumped upon her. Once in her bedroom she changed into her pajamas. She recalled that she was wearing undergarments - each of a specific brand. She turned off the light, turned on a fan and went to bed. [ 8 ] She believed that she later heard J.T. and C.Y.S. walk into the living room of the house and they were arguing.

Evidently she did not want to hear them arguing because she turned up the speed of the fan and went back to bed. [ 9 ] She told the Court that the accused came into her bedroom about 20 minutes to one and a half hour later and called her by her nickname (“Freida”), and he asked her if she was still up. She responded affirmatively and asked him why he wanted to know. J.T. said that he loved her (which I take to be C.Y.S.) and that he didn’t “like it when we fight”. K.S. did not participate in the conversation. She said that she listened to him for a couple of minutes and then she decided not to listen.

J.T. crawled on top of her, tried to take her pajama

bottoms down while she said “no, no”. At this point in her testimony, she requested that C.Y.S. be removed from the courtroom because, she explained, her crying “made it harder for me”. By agreement C.Y.S. briefly left the room only to return. She then went on to tell the Court that he removed her pajamas as she said “no, no, don’t”. She had placed her hands on her stomach but he pushed them away - in the process causing one hand to hit a wall and the other the frame of the bed.

She said that he pushed the bottom of her pajamas down to her ankles, dropped his pants similarly, undid his belt and “shoved his penis into me” as he held her hands down. She clarified her testimony by saying that he “put it into my vagina”. She said that she was too weak to resist and too scared to scream but she did tell him “no [J], no [J], stop”. She had her face in a pillow but he grabbed her face and made her “tongue kiss” him. She remembered smelling alcohol on his breath. In her words, he “raped me”. She testified that during this time she hoped that her mother would save her.

He then got up, pulled up his pants and left the room. She put on her night clothes, turned on the light to see if he had left the room and then she used room freshener spray “to make the room smell cleaner” because she “felt so ugly”. She then said that she forced herself to sleep. She told the Court that, prior to the incident, she had not experienced sexual intercourse. [ 10 ] She said that the next day she had trouble getting up because she was hung over and she was sore howver she was able to go to school in the afternoon. She told the Court that she felt little effect from the alcohol that she had consumed.

Five days later she tried to call her cousin to speak to her about the incident but she could not get the words out. She also was about to tell a teacher at school but the teacher was busy with other students. She expressed her feelings in her journal but then burnt the pages after she gave a statement to the police about the incident. The pertinent pages were tendered in Court by the defence during cross examination.

Subsequently K.S. took a pregnancy test that proved to be negative and, since she was concerned about getting a sexually transmitted disease, she underwent HIV/AIDS tests that also proved to be negative. [ 11 ] As one might expect, K.S. faced many questions from defence counsel including questions relating to a statement that she made to the police and to the statements that she made in her journal. [ 12 ] Counsel pointed out that she did not tell the officer about a number of events including the suicide of a friend or relative that had taken place during the same period of time and she had not advised the officer that J.T. had been picked up at jigging class.

She had told the Court that J.T. had removed his pants but in the statement she told the officer that she did not see him get undressed. In Court she said that J.T. pulled the blanket away from her but in her statement she told the officer that she did not know if he removed the blankets from her.

In Court she said that J.T. tried to kiss her but she did not tell the officer about the incident. [ 13 ] In her journal she admitted that she wrote that she thought that J. raped her the night before and, after describing the incident in her bedroom in some detail, she went on to say that she did not know if it had all been a dream or real life yet she goes on in her journal to write that she intended to get a pregnancy test.

In an entry dated March 3, she wrote that she had discussed the incident with her twin sister although, in cross examination, she testified that when her sister questioned her about the incident, she denied it. [ 14 ] Overall, she was not comfortable in cross examination. At one point she was reluctant to answer some questions. The Evidence of the Defence [ 15 ] The only witness called by the defence was the accused. He was 22 years of age at the time of the alleged offence. [ 16 ] He told the Court that on February 28, he was caring for his daughter at his grandmother’s residence on the N[...].

At about noon, he left the residence with his grandmother to go to Maple Creek and he then went to a cousin’s residence where he and four others drank 24 beer between 3:00 and 5:00 p.m. He himself drank five beer. At about 5:00 p.m. he left the residence to try and find more beverage alcohol and when he returned he discovered that the others had obtained more beer which was then consumed. He said that he drank about eight more beer. At about 10:00 or 11:00 p.m. he returned to his grandmother’s residence and he went to his bedroom in the basement where he sat in a chair and watched television.

He then advised the Court that earlier that evening between 5:00 or 6:00 p.m. he went to the nearby trailer where he was drinking with K.S.’s sisters. K.S. arrived at the trailer at about 8:00 p.m. with some alcohol. Prior to her arrival he drank one half of a mickey bottle and after K.S. arrived he had a couple of sips from her mickey bottle. [ 17 ] He said that K.S. left the trailer at about 9:00 or 10:00, however he continued to drink vodka and beer and he smoked a cannabis joint before leaving with C.Y.S. at about 11:00.

During the time that he was at the trailer he and C.Y.S. had argued about the baby and she had become sick. He went downstairs with C.Y.S. until about 12:00 midnight or 12:30 when, as a result of an argument, she went

upstairs. She later brought J.T. something to eat. [ 18 ] He testified that he did not leave the basement until the following day. He did not go to K.S.’s room and he did not touch her inappropriately or have intimate relations with her.

He did say that he saw her the following day either before or after she had gone to school. [ 19 ] According to him there was no animosity between the two of them that night, however, he recalled that K.S. had told him on a prior occasion that she did not like the way in which he had treated C.Y.S. [ 20 ] In cross examination, he admitted that on July 27, 2006, he had been convicted, as a youth, of three counts of failing to comply with a disposition and two counts of failing to comply with an Undertaking. He admitted that on July 26, 2008, he had been convicted of two counts of failing to appear in Court.

He admitted that he had provided a statement to the police about the incident during the morning of June 4, but that he was drunk at the time. He recalled being arrested on June 2, being in Court on June 3, and then giving the statement the next day. The defence admitted that he had been in custody for 51 hours prior to giving the statement and that the statement was provided to the police voluntarily. He admitted that he was released from custody on the present charges subject to an electronic monitor and that his cousin cut off the monitor which resulted in his arrest.

He has been in custody since that time. [ 21 ] He neglected to mention to the officer that he had watched T.V. in the basement. He admitted that he had flirted with C.A.S. at the trailer that night. At one point, he said that he could remember the whole evening but he said that he could not recall parts of the argument with C.Y.S. He recalled telling the police officer that he may have committed the alleged offence and that he did not know if he “did it” or not. He then said that he thought that he did not commit the offences because others said he did not go upstairs from the basement.

There was no evidence provided to the Court as to the presence of any other persons (other than C.Y.S.) in the basement or at the house. No other persons testified for the defence. [ 22 ] At the end of his testimony, he told the Court that on the night of the alleged incident he had spent the night at his grandmother’s trailer. He identified that night as the night of February 28. He told the Court that on March 1, he had gone to Maple Creek where he drank with his cousin.

The dates provided by the accused are not consistent with the other evidence provided at trial nor are they consistent with his earlier testimony in Court. The Law [ 23 ] The accused is charged under the following provisions of the Criminal Code : 271.

(1) Every one who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year and, 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years; (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year. [ 24 ] The matter of consent is not a live issue in this case and so a consideration of

section 150.1 is not necessary, however the credibility of the witnesses is the most significant issue and therefore an application of the instructions in R. v. W.D. [1] must be undertaken. This Court is the trier of fact and law so I am obliged to decide the facts in this case by applying the same principles that a jury would be required to apply. In W.D. the complainant testified and she told the Court about two sexual assaults that she said were committed by the accused. The defence tendered the evidence of the accused who denied that the incident had occurred.

The case is similar to the case before me. [ 25 ] At paragraph 27 and 28, Mr. Justice Cory said this respecting the burden of proof on the Crown on the issue of credibility:

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 not 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 they believe the accused. Secondly, ifthey do 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. 357. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trialjudge might well instruct the jury on the question 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. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should bemade to avoid mistakes in charging the jury on this basic principle.

Since the matter of credibility is frequently an issue in court, the instructions set out by the Supreme Court have been discussed in manycases. [26] A significant effort has been made to determine with greater precision how the instructions are to be considered. It is clear thatthe trier of fact must apply the standard of proof beyond a reasonable doubt to all of the evidence and it is inappropriate to do so inrespect of the defence evidence without consideration of the Crown’s evidence.

The instructions ought not to be applied to individualpieces of evidence but to all of the conflicting evidence and must be applied only to the elements of the offences charged by the Crown and the elements of the defences raised by the accused[2]. [27] A jury may have the impression that even if the accused’s testimony is disbelieved it can raise a reasonable doubt. In the case ofR. v. S.(J.H.), Mr. Justice Binnie, in an effort to elaborate on the second instruction mentioned above, pointed out that additional instructions could be added[3]. He referred favorably to the dictim of Wood J.A. in R. v.

H.(C.W.)[4] where the Court said: I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful considerationof all the evidence, you are unable to decide whom to believe, you must acquit”. When the evidence is examined in light of the direction, a jury ought not to think of the case as a contest between two sides therebyreducing the burden on the Crown and imposing a burden on the accused. Rather, the fact finder may totally accept or totally reject the evidence or may conclude that the evidence falls in between the two positions[5].

It is entirely possible for the jury to disbelieve theevidence of the accused yet, in light of all of the evidence, conclude that they have a reasonable doubt. The case was recently referred toby Ottenbreit J.A. in R. v. B.G.S. 2010 SKCA 24 , [2010] S.J. No. 106 at paragraph 7 when citing a passage from the Court’s decision in R. v. McKenzie (P.N.)[6]. The Evidence of a Child [28] It should be noted that the Supreme Court of Canada has spoken on the way in which a court should deal with the evidence ofchildren.

[ 29 ] In the case of R. v. B.(G) [7] , three young children were charged with sexually assaulting another student who was seven years of age at the time. At trial, the eight-year-old complainant testified about an incident that had occurred when she was seven years old and in grade one. The trial judge concluded that if the incident had occurred during the time suggested then it would have happened a year earlier than alleged.

While the case turned on whether the date of the offence was an essential element and whether an amendment should have been allowed, the Court, at paragraph 48, referred favorably to the dictum of Wakeling J.A. from the Court below who said: While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children. [ 30 ] The case was referred to in R. v.

W.(R.) [8] - a case in which the accused was charged with indecent assault, gross indecency and sexual assault against three girls one of whom was between two and four years old, another between nine and ten and the older girl who was ten at the time of the incident. They were 9, 12 and 16 years of age at the time of trial. The evidence of the oldest girl was uncontradicted except for the accused’s denial that anything untoward had occurred.

The convictions were upheld and at paragraph 23, Madam Justice McLachlin said the following: The repeal of provisions creating a legal requirement that children’s evidence be corroborated does not prevent the judge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults.

So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error. She pointed out that it may be wrong to apply adult tests for credibility to the evidence of children. She went on to say at paragraph 25: As Wilson J. emphasized in B. (G.) , these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

Therefore, it cannot be assumed that the evidence of a child is necessarily unreliable nor is it acceptable to measure the evidence of a youth to that of an adult. Yet, just as the evidence of an adult must be carefully scrutinized so too must the evidence of a young person.

Analysis [ 31 ] There is evidence that, in general, there were bad feelings between the respective families and there is evidence that the complainant did not like the accused however, there was no evidence of any specific instances of ill-will between them and, in fact, they had been in contact with one another earlier in the day without incident and they visited and drank together that evening. Furthermore, each told the Court that he and she did not have any difficulties with the other on that day.

In any event, even if people may dislike one another that, in itself, is not sufficient reason to disbelieve their evidence. While there is evidence that the complainant and the accused neglected to mention certain facts to the officer who took a statement from each of them, neither person was specifically asked about the facts referred to and so I find no reason to question the veracity of their evidence on that account.

A further examination of all the evidence is necessary. [ 32 ] It is of more significance that K.S., when describing what had occurred in her bedroom, told the Court that the accused had pulled the blanket away and that he removed his pants when she had earlier told the officer that she did not know if the blanket was removed and that she did not see him remove his pants. However, it is entirely likely that a 15 year old would not consider those parts of the narrative as important given her focus at the time that she spoke to the officer and when she testified in Court.

[33] It is curious that in the journal in which she kept her private thoughts, she would write that she thought that she had been raped orthat she did not know if it was all a dream however, her comments must be examined in the context of the rest of her journal entries, inwhich her emotions appear to range from anger at the accused to uncertainty about whether she was pregnant and how to deal with apossible pregnancy.

Given her age, her lack of experience in sexual matters and her explanation in Court that she could not believe thatthe incident had occurred, her comment is not entirely surprising. [34] At trial she was uncomfortable about answering some questions from defence counsel and she was reluctant to testify as to thedetails of the incident in the presence of her sister - J.T.’s companion. It seems to me that her reaction was to be expected.

It is notunusual for any person (especially a sixteen-year-old girl) to be reluctant to testify in front of family, friends and the public generallyabout an incident that was clearly traumatic to her. Nor did it surprise me to see that she was upset when describing details of theincident in a courtroom setting. [35] She had not consumed alcohol until she drank vodka in the trailer that evening but her recollection of what happened was detailedand her evidence was not shaken in cross examination.

She shared the vodka with three other persons yet her description of her conditionranged from being sober when leaving the trailer to being “hammered”. In the circumstances, I think that it is unlikely that she washeavily under the influence of alcohol when she returned to the house. J.T., however, was clearly under the influence of alcoholthroughout the afternoon and evening. He testified with some considerable detail as to the times that certain events occurred yet he wasconfused as to the day in question.

When speaking to the officer he was uncertain as to whether he had committed an offence relyinginstead upon what other persons may have seen him do. Peculiar evidence for someone who claimed in Court that he recalled the eventsof the entire day and who insisted that he did not commit the offences.

He was clearly wrong when he told the Court that he wasintoxicated when he gave his statement to the police on June 4, since he had been in custody for 51 hours prior to giving the statement. [36] After examining all of the evidence and viewing the demeanor of the complainant and the accused on the stand, I conclude that Icannot believe J.T.’s evidence when he told the Court that he remained in the basement of the house for most of the night in question,that he did not go to K.S.’s bedroom and that he did not have contact with her.

I believe the testimony of K.S. as to what transpired in herbedroom during the early hours of March 1. Any inconsistencies in her evidence are not significant. Her evidence on material points wasclear and consistent. I do not believe that she was motivated by revenge against J.T. when giving her evidence and I do not accept anysuggestion that her testimony was given with the intention of falsely accusing J.T. of committing the offences in question. [37] The Crown seeks a finding on each of the charges before the Court.

The Crown has proven beyond a reasonable doubt that J.T.forced himself upon K.S. and committed a sexual assault upon her at a time when she was under the age of 16 years contrary to section271(1) of the Code. The evidence similarly proves that J.T. touched K.S. for the purpose of having sexual intercourse with her contraryto

section 151 of the Code. [38] We will now proceed to conclude the case. __________________________ L.A. Matsalla, J [1] (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). [2] R. v. B.D. 2011 ONCA 51 at para. 96. [3] 2008 SCC 30 , [2008], S.C.J. No. 30 (S.C.C.) at para. 12. [4] (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.) at 155. [5] R. v. Challice, supra at 556-7. [6] (1996), (SK CA), 141 Sask. R. 221 (C.A.). [7] (SCC), [1990] 2 S.C.R 30.

[8] (SCC), [1992] 2 S.C.R 122.