R. v. Paul, 2019 NSSC 170

Supreme Court of Nova Scotia Citation: R. v. Paul, 2019 NSSC 170 Date: 20190508 Docket: CRS 474752 Registry: Sydney Between: Her Majesty the Queen v. Sylvester Paul, Jr. Accused Library Heading Judge: The Honourable Justice Patrick J. MurrayHeard: April 25, 26, 2019 in Sydney, Nova ScotiaOral Decision: May 8, 2019Written Decision: May 28, 2019Subject: Criminal law – s. 271 of the Criminal Code of CanadaSummary: After meeting at a wedding party, the Complainant alleged the Accused had sexual intercourse withher without her consent. Complainant experiencing level of intoxication.

Further Crown witness providing evidencecorroborating that of the Complainant, in part. Accused making general denial.Result: On the whole of the evidence, the Crown had proven its case beyond a reasonable doubt. Courtsatisfied as to credibility of Crown witnesses, including evidence of identification. Accused convictedof offence.Cases cited: R v. W.D., (SCC), [1991] 1 S.C.R. 742 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF Nova Scotia Citation: R v Paul, 2019 NSSC 170 Date: 20190508 Docket: CRS 458562 Registry: Sydney Between: Her Majesty the Queen v. Sylvester Paul, Jr. Accused Restriction on Publication: 486.4

Judge: The Honourable Justice Patrick J. Murray Heard: April 25, 26, 2019 in Sydney, Nova Scotia Oral Decision: May 8, 2019 W ritten Decision: May 28, 2019 Counsel: John MacDonald for the Crown Peter Mancini, QC, for Mr. Paul, Jr.

Section 486.4 - Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

By the Court (Orally): Introduction [ 1 ] The Accused, Sylvester Paul Jr., of 73 Logan Drive, Eskasoni, NS, is charged that on the 15 day of October 2017, at or near Eskasoni, Province of Nova Scotia, he did commit a sexual assault upon […], contrary to s. 271 of the Criminal Code of Canada . [ 2 ] He is also charged at the same time and place with that he did without lawful authority confine […], contrary to s. 279(2) of the Criminal Code of Canada . With respect to this charge the Crown has asked the Court to enter a finding of not guilty.

Essential Elements of Offence [ 3 ] The elements of the offence of sexual assault include the date, time and place of the offence. Essentially the main components would be: 1) touching; 2) that the touching be of a sexual nature; 3) that it would be without the consent of the Complainant; and 4) that the Accused would have knowledge of the lack of consent to the touching by the Complainant. The identity of Mr. Paul as the person who committed the offence must also be established. Burden of Proof

[ 4 ] The Crown has the burden of proving the essential elements of the offence beyond a reasonable doubt. This burden remains with the Crown at all times and it is never on the Defendant. Mr. Paul, Jr., has no burden what so ever and is presumed innocent. He has denied committing the offence, as evidenced by his brief conversation with Cpl. Marshall, who gave evidence at the trial.

Crown’s Position [ 5 ] The Crown submits it has discharged its burden of proof in this case, through the evidence of the Complainant, as supported by other evidence. […] is 23 years of age and would have been 21 years of age at the time of the offence. She gave evidence that on the date in question, after meeting briefly with him, Mr.

Paul had sex with her, intercourse, without her consent and that she objected to this by telling him “no” on numerous occasions and calling for help from the bedroom they were in. [ 6 ] She initially “stepped back” from the hallway where she met him into the bedroom because she could hardly hear him or herself speak, due to the large number of persons at the wedding celebrations (the after party) in the early hours of the morning on the date of the offence. [ 7 ] She testified that Mr. Paul’s reaction to her objections was that he told her to “shut up”, and “no one will hear you”.

Following the intercourse, she indicated Mr. Paul had her perform oral sex upon him. He later fell asleep on the bed. She then left the room and ended up crouched in a closet, upset and with her shirt over her legs and panties back on. [ 8 ] The Crown submits that a further Crown witness, […], gave strong evidence. Mr. […] testified he was at the party, had been drinking and admitted to smoking two joints.

He said he went to the bathroom and found […] sitting in the closet of the hallway, and that her shirt was covering her up, referring to her “private parts”. [ 9 ] After speaking to her Mr. […] went to the bedroom and found a man there who he identified as Mr. Paul. There was no light in the room he said and he used his “bic” lighter when he entered the bedroom. He said he held the lighter open for 5 to 10 seconds. He identified the person lying on the bed asleep as Mr.

Paul Jr., the Accused. [ 10 ] The Crown submits that Mr. […]’s evidence provides corroboration for the evidence given by Ms. […], whose evidence the Crown submits shows there was intercourse between the Accused and Ms. […], and that it was without her consent and in circumstances where the Accused would have known there was no consent. [ 11 ] On its face the Crown says Ms. […]’s evidence, supported by Mr. […]’s, makes out the offence of sexual assault against Mr. Paul, Jr., contrary to s. 271 .

Defence Position [ 12 ] The Defence submits that the Crown has not met its burden of establishing proof beyond a reasonable doubt. Mr. Paul, Jr., has denied that the offence occurred as evidenced by his plea of not guilty. They say there are a number of problem areas with the Crown’s case, beginning with the level of intoxication of Ms. […]. [ 13 ] According to the evidence of the RCMP investigating officer, Cst. Jacquare, Ms. […] told her that she had been drinking for two (2) days prior to the alleged incident. Ms. […] was adamant in her evidence that she informed Cst.

Jacquare that she had been drinking “two days before” the incident and not “for two days” leading up to the incident. [ 14 ] Further, according to Cst. Jacquare’s evidence, Ms. […] told her she saw the Accused earlier in the evening and he asked her about having sex. She, Ms. […], said that she spoke to the Accused for the first time in the line up to the bathroom upstairs. She did say that she saw Mr. Paul, Jr. earlier on the stairs but he had been talking to a friend and not her. Ms. […] said she had spoken to that same friend, but not Mr.

Paul, Jr., until in the lineup later on. [ 15 ] Ms. […] also said on cross-examination, she “did not remember talking to the cops” at all at the house. In addition, Ms. […] had a minimum of a pint of vodka at the dance at the Cultural Centre and three drinks of rum at the after party in the wee hours of the morning. [ 16 ] The Defence argues further that in addition to these contradictions, there is much Ms. […] cannot remember in the way of details about the incident, such as what happened on the bed, and who found her.

The Defence submits that Mr. […], rather than corroborating her evidence, gave weak evidence. [ 17 ] Mr. […], says the Defence, first said, in direct testimony, that he was “drunk” but then said not drunk but “busted”, which was later clarified to be “buzzed”. He had a buzz on. His evidence is not reliable and the Court should be left with a reasonable doubt, submits the Defence. [ 18 ] In particular, the Defence refers to the evidence of identity of Mr. Paul by Mr. […], the very quick use of a bic lighter in an otherwise dark room, and the less than clear description of the location of the bedroom.

It was at “the end” Mr. […] said. There was more than one bedroom, there were two bedrooms. [ 19 ] The Defence says identity evidence is fraught with danger. There are inherent frailties which exist here as they would in any other case where identity was an issue such as an armed robbery, break an enter or other criminal case. The Court must be cautious says the Defence. Ms. […]’s memory is faulty. She may believe it to be true, says the Defence, but coupled with the weak evidence of her […], Mr. […], and the denial of Mr.

Paul, Jr., the Court should be left with a reasonable doubt and render an acquittal of the Accused. Analysis [ 20 ] I have considered the evidence at trial and credibility is obviously a main issue as well a reliability. Credibility is a question of fact that must be proven beyond a reasonable doubt. In terms of alcohol, the Complainant admitted to ingesting a pint of vodka and three

drinks of rum over the course of the evening and the early morning. Yet, at trial she described the assault in some detail, where they met in the lineup, she couldn’t hear so she stepped back, it was noisy, he shut the door behind him, they were kissing, and then up to a point it became uncomfortable because he was touching her body, inside and outside, her knees falling back on the bed, him taking her pants off, her saying “no I don’t want to do this” and “no” numerous times and him saying “shut up no one is going hear you”. [ 21 ] She testified about the positions they were in, she on the bottom, him on top.

Then, the oral sex. His hands on the back of her head. Him falling asleep on the bed. Her leaving going to the closet upset. She couldn’t remember who exactly found her in the closet. She mentioned it was a few of her friends who took her into the other bedroom. [ 22 ] […] was the second Crown witness called and the Crown is placing reliance on his evidence to discharge its burden. Mr. […]’s evidence is significant in that he identified the Accused as being asleep on the bed in the bedroom that night.

He said he was naked from the waist down. [ 23 ] As stated, the Defence takes issue with the reliability of Mr. […]’s evidence, four beer, two joints, room dark, only a lighter; it was only seconds, 5 - 10, says the Defence. This combined with the effects of alcohol and drugs leaves Mr. […]’s evidence wanting in terms of identification. It falls short and is not supportive of Ms. […], whose own evidence is problematic, says the Defence. [ 24 ] The Defence points to her answer in questioning by the Crown about the assault alleged; what happened next? After a long pause, she answered “I don’t know”.

There are further uncertainties expressed by her, say the Defence. [ 25 ] The Defence argues the best evidence is that of Cst. Jacquare who says that on the morning in question they, the RCMP, were unable to take a formal statement from Ms. […] for two reasons: 1) her level of intoxication; and 2) her varying accounts of what happened. In its submission the Defence says, so we have the investigating officer unable to obtain a statement from the Complainant because she was too intoxicated and giving differing accounts of what happened.

Surely, says the Defence, this raises a reasonable doubt. [ 26 ] The Crown on the other hand, says that none of these issues detract from the overall credibility of Ms. […] evidence that Mr. Paul, Jr., had sex with her without her consent. There is clear and cogent evidence of lack of consent expressed over and over again, says the Crown. Mr. Paul, Jr., was found in the place where expected, when he passed out on his own in a bedroom naked from the waist down at a wedding party. [ 27 ] The Crown submits that Ms. […] evidence is not indicative of deliberate fabrication.

In terms of faulty memory due to the ingestion of alcohol, there would be a great variance, says the Crown, from her testimony to a consensual act. She ended up in a closet with bra, panties and t-shirt only, after she left the room. The circumstances are inconsistent with a consensual act, which act Mr. Paul, Jr., has denied occurring. [ 28 ] According to the Crown, even if Ms. […]’s memory is faulty, it is not so faulty that her recollection of events is not reliable. The Crown submits it is reliable and that she was credible.

Decision [ 29 ] In terms of the “I don’t know” comment, the inability to give a detailed account does not necessarily affect Ms. […]’s credibility. The basic components and framework of the assault were described, namely that he had sex with her without her consent and this included an incident of oral sex following the intercourse. [ 30 ] Ms. […] gave evidence she knew Mr. Paul from before. They talked when they were younger. Otherwise, there was no relationship. She said the wall was behind her, when lined up for bathroom. She described the bedroom where it happened as being at the end of hall.

This is consistent with the evidence of Mr. […]. [ 31 ] There are the two mains discrepancies in terms of what she told Cst. Jacquare at the house. Cst. Jacquare said Ms. […] told her she saw him earlier and he asked about having sex. When asked about this in cross examination she said, she “could not remember talking to the cops” at the house that night. The second was whether she told Cst. Jacquare that she had been drinking for two days. Ms. […] was adamant she told the officer it was two days before that she had been drinking.

If she could not remember speaking to the officer, how was she sure she said two days before and not for two days. [ 32 ] Despite this, I had the clear impression that Ms. […] was being truthful. She very clearly explained what happened, being in the lineup, stepping back into the bedroom, making out and then it progressing to where she was uncomfortable, when the touching began inside and outside her clothing. What followed was the removal of her pants and intercourse which she described as “fucking”. [ 33 ] More troublesome in my view is Cst.

Jacquare’s evidence that a statement could not be taken and the reasons for that. Once again, without parsing the testimony, and when I consider whole of evidence, it does not detract from Ms. […]’s overall credibility. I find the Complainant’s testimony in both direct and cross hangs together pretty well but for these discrepancies. As Cst. Jacquare said, she had been drinking. There was an obvious level of intoxication. But they returned on the same day to take her statement. At that point she had taken herself to the hospital, whereas initially she just wanted to go home. [ 34 ] Cst.

Jacquare gave evidence that when she arrived the Complainant was wrapped in a blanket and very upset. Her evidence is not without inconsistencies. She was obviously intoxicated at the house, but the police must have felt she could give a statement that same day, which she did. [ 35 ] Mr. […] is a […] to Ms. […] but they were not at the party “together”. He described hearing at the party about an assault and went to check it out. Ms. […] was sitting in the closet with her legs covered up. This is how she described herself, with her shirt over her knees.

After speaking to her, he went to a bedroom and found a man lying on the bed, he had to use his lighter, but identified the man on the bed, in Court, as the Accused.

[36] I did not find Mr. […]’s evidence weak. On the contrary, there were things he said that were credible as to why he wouldremember. It was him who said the light switch did not work. He had presence of mind to use lighter, which he did, and he walked rightup to the bed and left it on for 5 to 10 seconds. He described Mr. Paul, Jr., as being naked from the waist down and said he never beforesaw a man naked. [37] Further, when identifying the Accused in Court he referred to him as " Little Sylvester", which indicates he knew who he wasidentifying as the man there that night. Mr.

Paul is identified on the indictment as Sylvester Paul, Jr. [38] While Mr. […]’s evidence does not corroborate all of Ms. […]’s evidence, in my view, it corroborates a substantial or materialpart of it, in terms of the circumstances she described that night. [39] Once again, in terms of the “I don't know”, and there were several of them, I do not think a literal

interpretation of that phrasecan be taken as, she was asked what happened next. She did not say, I don't know what happened, it was in response to what happenednext. She in fact, proceeded to say what happened stating that they had sex, who was on top and bottom, including the removal ofclothing. [40] She admitted to being unsure about ejaculation but said the intercourse was followed by oral sex and gave the details of that. On cross examination the only real inconsistency was with respect to her testimony about her father’s reaction.

She was challenged thatshe said he was “pissed off” and went straight to his room and that she did not say he hugged her and told her he felt badly. Herexplanation was this was private, her “personal shit”, she said. [41] The real challenge to her testimony came from what she told or did not tell to Cst. Jacquare. I do not find this has detractedfrom her testimony so as to leave me with a reasonable doubt. Nor does the denial of Mr. Paul, Jr., cause me to have a reasonable doubt,under the guidance of R v.

W.D., (SCC), [1991] 1 S.C.R. 742. [42] On the whole of the evidence, I am satisfied the Crown has proven the offence against Mr. Paul, Jr., under s. 271, beyond areasonable doubt. I therefore find him guilty of that offence. As requested by the Crown, I find him not guilty of the second offence ofunlawful confinement. [43] This concludes my decision. Murray, J.