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His Majesty the King v. Richard Sutherland, 2024 NBKB 019 **SUBJECT TO A PUBLICATION BAN s. 486.4 of the Criminal Code restricts the disclosure of any information that might identify the complainant in this matter** Court File No.: SJCR-18-2022 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN B E T W E E N: HIS MAJESTY THE KING – and – RICHARD SUTHERLAND BEFORE: Justice Kathryn A. Gregory HEARING HELD: Saint John, N.B. DATES OF TRIAL: November 27, 28 and December 8, 2023 DATE OF POST HEARING BRIEFS: December 7 and 8, 2023 DATE OF DECISION: January 31, 2024 (orally)

COUNSEL: Elaina Campbell, counsel and agent for the Crown Brian Munro, counsel for the Accused GREGORY J (orally): 1. Richard Sutherland is charged that he sexually assaulted C.D. between June 1, 2014, and September 30, 2014, at Bayside, NewBrunswick, thereby committing an indicatable offence contrary to s. 271(

a) of the Criminal Code. 2. The allegation is that one evening in the summer, the accused put his hand down the back of C.D.’s pants under her underwearand touched her bum and the outside of her vagina. 3. C.D.’s parents were close friends at the time with the accused and his wife, Suzanne Sutherland. The families did manyactivities together including camping, which forms the backdrop for the alleged assault on C.D. 4. C.D. at the time of trial was 16 years old. She alleged that the offence occurred when she was 7 or 8 years of age. 5.

While the Indictment alleges a certain time frame in 2014, both parties are agreed that the dates in the Indictment do notconstitute an essential element of the charge against the accused. 6. The identity of the accused was agreed upon at the start of the trial. 7. The Crown called a police officer, the complainant and the complainant’s mother, A.B. to the stand. 8. The defence called the wife of the accused and the accused to the stand. 9. At issue in this matter, as identified by the parties, is the principle derived from R. v. W.D., (SCC), [1991] 1S.C.R. 742, and the credibility of witnesses. 10.

A significant nuance to this case renders this case a “she said, they said” case. The complainant has alleged she was sexuallyassaulted by the accused. He, and his wife, deny that this happened. 11. The non-contentious evidence sets the background to this case, as follows: a. The complainant, C.D., was born June 28, 2007 b. At the time of her testimony, she was 16 years old c. C.D. and her older sister (by 6 years) lived with their parents in St. Stephen d. The Sutherlands also lived in St. Stephen with their two children, who were older than the complainant and her sister e.

The accused and the father of C.D. met in 2010 and became very close friends/best friends because they worked together for thesame trucking company

f. Both wives also became very close/best friends g. The families spent a lot of time together at each other’s houses, taking little trips together, and talking by phone almost everyday h. The complainant stated, “they were always in our lives,” referring to the accused and his wife i. The complainant’s mother described regular weekend get-togethers with the accused and his wife and that she trusted them with her children j. In May of 2014, the complainant’s family, and the Sutherland family each purchased a camper trailer k.

Suzanne Sutherland, wife to the accused, also described regular weekend get- togethers and outings. She also stated that she knew the complainant and her sister well and that they would go in and out of the Sutherland trailer for snacks and games l. The first camper trailer owned by the Sutherlands was a fifth wheel, 28 feet long. It had one entrance door, and it was made up of a bedroom with a queen size bed, a kitchen, a bathroom, and a seating area m. The first camping trip for the two families together was to a spot located in between St. Andrew’s and St. Stephen, New Brunswick, called Islandview n.

That camping trip occurred on the June 27 th weekend in 2014 leading into the July 1 st holiday o. On June 28, 2014, C.D. turned 7 years old p. The families used their camper trailers over the next two years, camping together occasionally at Islandview q. The Sutherlands owned two trailers, the first was purchased in 2014 and the second bought some time after; the complainant had been in both trailers r. When camping the adults were consuming alcohol s. The families remained close until the allegations of sexual assault surfaced in 2021. 12 .

I have grouped the contentious evidence into the following categories: a. The timing : referring to when the alleged assault took place (not as an essential element but going to the complainant’s reliability and credibility as a witness) b. The lead-up : referring to what occurred immediately prior to the alleged assault c. The details : referring to the details of the alleged assault d. The “witness” : referring to the alleged witness to the alleged assault e. The denial : referring to the accused’s denial of the alleged assault. The Timing 13 .

Much of the direct and cross examination focussed on the description and location of the trailer where the alleged assault occurred. I understand that in a case of “he said, she said” it is often difficult to let any testimonial detail go without full examination in the hope it will lend support to either the Crown or defence. However, in this case, as in most cases involving allegations of sexual assault against a young child, such testimonial detail is often peripheral to the allegation of the specific assault. 14 .

A witness who testifies to events that occurred when they were a child is assessed like any other witness with the caveat that children do not process peripheral events such as time and place the same way adults do. Therefore, less weight may be accorded to inconsistencies in or lack of recall of such evidence. 15 . Much was discussed in direct and in cross examination relating to the location of the campers in 2014 (they were side by side according to the evidence). It seemed to be assumed by the defence that the allegation was fixed in time and could only have occurred in 2014.

But the evidence from the complainant was that the offence occurred when she was 7 or 8 . 16 . I asked defence counsel if the defence was predicated on the dates set out in the Indictment (2014) given that much of the attempts to test the reliability and credibility of the complainant was focussed on the 2014 camper and that specific joint camping trip

that occurred that year. 17 . Counsel submitted that the defence was not predicated on the dates in the Indictment and that the date was not an essential element to the allegation in this case. 18 . Therefore, in addition to being peripheral detail, I find it matters not to the central allegation of assault what the 16-year-old complainant recalled from age 7 or 8 about the exterior, interior or location of the Sutherland trailer.

Except for addressing one detail of the trailer later in my decision, I find that nothing turns on this evidence and I place little to no weight on it in the context of all of the evidence. 19 . It is entirely possible on the evidence before this Court that the alleged assault occurred in the summer of 2015 when the child was eight or close thereto. The Lead Up 20 . Both the complainant, her mother and the wife of the accused testified to the children going in and out of the Sutherland trailer regularly. The complainant described being in the Sutherland trailer as much as in her own.

The wife of the accused described always knowing when the children went in the Sutherland trailer. 21 . The complainant testified that during one of their nightly bonfires with her parents and the Sutherlands, she began to feel unwell. She asked to go lie down. She described her trailer as being slightly down a slope and farther from where the bonfire was. She opted to go into the Sutherland trailer because it was closer, and she was afraid of the dark. 22 . The complainant described the time of day as being “dark” but still light enough to see.

It appeared that she was describing “dusk” though not labelling it as such. 23 . The complainant entered the Sutherland trailer and went to lie down on the main bed in the trailer. She described pulling a blanket over herself. She was alone in the trailer. She testified that some time after, the accused entered the trailer and laid down beside her. 24 . The complainant testified that the bedroom was “closed off” but she was not sure if there was a door to the bedroom. She was pressed on this in cross-examination.

Her earlier statement to a social worker was played wherein she stated that “I think there was a door, but it was hard to tell because the Sutherlands had had two campers.” She further stated to the social worker, “the door was closed when I was in there.” On redirect, the complainant stated that she thought she was referring to the main door to the camper being closed when she was talking to the social worker. 25 . For her part, the wife of the accused stated that there was no door to the bedroom and that a person could see the bedroom upon entering up into the trailer from the main door. The Details 26 .

With respect to the alleged assault itself, C.D. testified that she was on her stomach on the bed in the Sutherland trailer dressed in leggings and a top. She had a blanket over the top of her. 27 . The accused entered the trailer and laid down beside the complainant on the bed. The complainant testified that she felt the accused’s hand down the back of her leggings under her underwear going down to her “butt.” She recalled feeling his hand tight and snug against her because of her leggings and his hand trembled on her skin. According to the complainant, “his hands always shook.”

28 . The complainant testified that when his hand went down the back of her leggings, she “scooted away a bit” and he followed her despite her telling him to “stop.” 29 . While the complainant clearly testified to the accused touching her bum with his hand, the testimony became muddled when the complainant was asked if he touched her anywhere else. 30 .

The prosecutor asked C.D. “did he pass your butt?” answer: “yes”; “what did he touch when he passed your butt?” answer: “ugh, nothing, Suzanne walked in…”; “so did he ever touch anything further than your bum or was it cut off?" answer: “it kind of got cut off…” (by Suzanne walking into the trailer). 31 . The complainant said the accused had his hand down her pants for 10-20 minutes and then the following exchange took place: a. “He slowly tried to move it closer and closer…” b. “To what?” c. “To my vagina probably…” d. “Did he touch your vagina?” e. Complainant shook her head to indicate “no” to that question f.

When asked to answer verbally on the record, the complainant said “it’s kinda hard to explain…He was touching it, but not inside of my vagina” g. “What does it mean to be inside your vagina?” The complainant replied, “I don’t know!” When pressed further, the complainant began to cry and asked for a break which was granted h. Sometime after the break the complainant denied that the accused’s hand ever entered her vagina i. She stated that the accused touched her vagina (the outside) for five minutes j.

The accused removed his hand from her vagina and from her pants altogether when his wife Suzanne walked into the trailer The “Witness” 32 . The complainant testified that the wife of the accused, Suzanne Sutherland, walked into the trailer when the accused and the complainant were on the bed together. The complainant stated that the wife “didn’t say anything and she didn’t do anything.” She stated that she was not sure the wife “knew what was going on.” 33 . She recalled getting up off the bed and walking out of the trailer with Suzanne and that the rest was a blur once she was outside the trailer. 34 .

At one point, the complainant testified that Suzanne did not say anything to her or to the accused; at another point she thought maybe Suzanne said something to the accused, but she could not recall what. 35 . For her part, Suzanne Sutherland testified that the event simply did not happen as she never once saw her husband and the complainant on the bed together. She repeated that it did not happen. If it had, there would have been a lot of confusion. When asked if she would lie to protect her husband, she stated that had she seen her husband in bed with a child she would have called the police. 36 .

Suzanne Sutherland testified that she has been married to the accused for 35 years. She and the accused have two adult children, two grandchildren and a son in law, all of whom (excluding the grandchildren) were present in court for most of the proceedings. 37 . Again, much of the direct and cross examination focussed on a specific camping weekend in 2014, the description of the

Sutherland trailer, and the location of the two trailers in proximity to each other that July 2014 long weekend. But as stated above, the defence is not based on the timing of the alleged assault and evidence exists from the complainant that the assault may have occurred the following summer. The Denial 38 . The accused testified that he is 62 years of age and that at no time did his wife “catch me in no bedroom with no kid.” He stated that he “did not put my hands down no kid’s pants” and “…that kid was never in our bed.” 39 .

The accused confirmed in his testimony that he, along with a few other family members, all suffer from the same condition that causes trembling in the hands. In fact, he noted that the father of the complainant often teased him about his condition. He noted that it was well known to everyone that his hands shook. 40 . He denied in cross examination that he had ever been alone in his trailer with the complainant at any time. This despite acknowledging, as his wife did, that the children were in and out of the Sutherland trailer regularly. 41 .

He stated that the families usually camped together about 3-4 times a summer. He too focussed on the June 27, 2014, long weekend and various details about the trailer and its location to that of the complainant’s trailer, but I find much of this irrelevant to what I need to determine here, for reasons stated above. The Analysis 42 . This case turns primarily on the testimony of the accused, his wife, and the complainant. The accused and his wife have both provided exculpatory evidence in their denials of the complainant’s evidence regarding the alleged assault. 43 .

This, of course, triggers the principle set out in the decision in R. v. W.D. The W.D. principle requires a judge to assess evidence of an exculpatory nature, whether advanced by an accused directly in testimony or by other evidence tendered by either the Crown or the defence, as follows: a. If I believe the exculpatory evidence, I must acquit the accused; b. If I do not believe the exculpatory evidence but it raises a reasonable doubt, I must acquit the accused; c.

If I neither believe the exculpatory evidence nor does it raise a reasonable doubt, does the evidence that I do accept convince me beyond a reasonable doubt of the guilt of the accused. In other words, the burden always remains on the Crown to prove its case against an accused beyond a reasonable doubt. 44 . The Crown must prove all of the elements of the offence contrary to s. 271 (

a) of the Criminal Code , namely: a. The identity of the accused (this is admitted) b. The jurisdiction/place c. That the accused touched C.D. d. That the touch was for a sexual purpose, and e. That C.D. was under the age of sixteen at the time (consent is an unavailable defence). 45 . Here, the only element of the alleged offence in issue is whether the touching occurred as described by the complainant. 46 . I accept that the elements of identity, jurisdiction, and age are established by admission or on the evidence. 47 .

I also accept that should I find that the accused touched the complainant as she described, namely on her bum and vagina, that the touching was for a sexual purpose. 48 . I will state up front that I do not believe the exculpatory evidence of the accused or his wife. Further, none of their evidence, effectively their denials, raise for me a reasonable doubt in the context of all of the evidence presented in this matter. 49 . As I have previously written on the issue of straight denials from an accused in the context of sexual assault in R. v. E.D., 2021

NBQB 91 , 2021 NBQB 091, affirmed E.J.D. v. R., 2023 NBCA 65, I rely on these decisions for the law and analysis in thatregard. 50. Briefly, and citing from the appeal decision written by LeBlond J.A., at paragraph 17, he states the following: The judge’s “stand alone” statement with respect to E.J.D.’s testimony does not end the analysis of his credibility, nor does it translateinto an automatic finding of reasonable doubt. Such a statement is not a guarantee of an acquittal. E.J.D.’s testimony cannot beconsidered in a vacuum nor is it immune from being challenged by credible conflicting evidence.

A judge is entitled to reject anaccused’s testimony, whether it consists of a bare denial or not, if the judge accepts conflicting evidence as truthful beyond areasonable doubt after careful consideration of all of the evidence: R. v. G.C., 2021 ONCA 441, [2021] O.J. No. 3377 (QL), at para.15. [emphasis added] 51. I am aware it is indeed difficult for an accused, when faced with an allegation that he sexually assaulted a child or anyone, torespond to such an allegation with anything other than a straight denial. The nature of this type of allegation is that it often occurswithout witnesses. 52.

Here, however, the complainant herself testified to a witness being present, the wife of the accused. While the complainant wasuncertain whether the wife knew of the assault specifically, her testimony alleges at the very least that the wife knew she was on the bedwith her husband. 53. But I reject the denial of the wife that she saw her husband on the bed with the complainant. Her interest in the outcome of theproceeding is simply too great.

But this only makes me leery of her evidence; it is this concern, coupled with the testimony of thecomplainant as I will explain below, that causes me to reject the exculpatory evidence of Suzanne Sutherland. 54. Despite rejecting the evidence of the accused and his wife, I must turn to the question of whether the Crown has convinced mebeyond a reasonable doubt of the guilt of the accused. This question turns on the evidence of the complainant, having considered it in thecontext of all of the evidence including the exculpatory evidence of the Defence. 55.

In my assessment of the evidence of the complainant, it will be apparent why I do not accept the denials of the accused and hiswife (her denial of having seen the accused and the complainant on the bed). 56. At the outset of my assessment of the credibility of the complainant, I must address a significant problem with her testimony.Rightly so, the accused points to this problem to support his argument that the Court simply cannot accept her testimony as reliable andcredible. 57. As noted above, the complainant’s testimony regarding the very details of the alleged assault is problematic.

While she was clearthat the accused touched her bare bum with his hand under her leggings and underwear, she initially denied he touched her elsewhere,namely on her vagina. She later testified that he touched her vagina (on the outside) for 5 minutes. 58. I agree with the Defence that this is concerning. There was at first a clear denial of having been touched anywhere but on herbum and then a description of having been touched on her vagina for 5 minutes. 59. I note, as an aside, that the witness testified to having been touched on her bum for 10 to 20 minutes and on her vagina for 5minutes.

I have considered this testimony in light of the young age of the witness testifying at the age of 16, and I find that these timingsare likely an unintended exaggeration of time. I do not find that they take away from her recollection of what happened to her. 60. This being said, I find that I cannot rely on the testimony of the complainant with respect to being touched on the vagina.

While Isuspect the problem was her extreme discomfort at having to testify to such details, I simply cannot find this as fact in light of, first, adenial, then muddled testimony, then a clear description of being touched on the vagina. 61. I have also considered that the witness struck me as somewhat naïve for a 16-year-old and extremely uncomfortable testifying tospecific details and body parts. Nonetheless, any facts that I accept in the context of the whole of the evidence, I must find that they havebeen proven beyond a reasonable doubt.

I cannot find this to be so regarding the testimony of having been touched on the vagina, it issimply too unreliable. The Supreme Court in R. v. Morin, (SCC), [1988] 2 S.C.R. 345, at para. 17, explains: The Court of Appeal indicated that the only thing that must be proved beyond a reasonable doubt was the guilt of the accused. The fairlyclear implication of the Court of Appeal's judgment is that the facts underlying this conclusion do not themselves require to be provedbeyond a reasonable doubt. In my view, this is wrong.

It gives the jury no guidance as to what standard of proof it must apply to the fact-finding exercise. In the absence of direction they might apply a balance of probabilities or an even less stringent test. I agree with thejustices of the High Court of Australia that the jury must be instructed at some point in the charge that in making adetermination as to the guilt of the accused they must have resort only to facts which, when assessed in the context of all the facts,have been proved to their satisfaction beyond a reasonable doubt.

I believe that a jury would have no difficulty in comprehendingsuch a direction, since it accords with logic and common sense as well as with the law. [emphasis added] 62. I do, however, accept the clear and unwavering testimony of the complainant that she was touched on her bum by the accusedwhen he got on the bed beside her and put his hand down the back of her leggings. I was struck by her description of how she could feelhis hand shake as he touched her and the tightness of his hand against her bum because of the “snug” leggings. 63.

I acknowledge the testimony of the accused that “everyone” knew his hands shook, as I described above, and the defenceargument that this therefore should not be taken as a significant detail in the complainant’s testimony. I took from the manner in whichthe complainant testified to this detail that this was a specific feature of her recall of the event; that this was an aspect of the physicalityof the touch that stood out to her. 64. Defence counsel asked in oral submissions was the complainant using this known impediment of the accused to convince the

Court of her veracity because of its specificity. 65 . Inherent in that question from the Defence is the suggestion that the complainant is fabricating the evidence of the assault and using this detail, known to everyone, to bolster the allegation. In considering this challenge to the credibility of the complainant, I have factored in that the complainant presented as a “young” witness (meaning acting and communicating in a way that is younger than her years). 66 .

I find the accused’s submission that perhaps the witness is using this detail to give veracity to a false complaint suggests calculation and planning from a somewhat naïve witness. For this and further reasons explained below, I do not accept this suggestion. 67 . It is true, as the Defence states, that it is not for the accused to have to explain why the complainant might be fabricating evidence. This is inherent in and critical to the presumption of innocence. However, in assessing the complainant’s evidence of an assault, I must consider what interest she might have in the outcome of the matter. 68 .

Here, the Sutherland family and the complainant’s family were best friends, spending significant portions of their free time together. The complainant testified to trusting the accused and his wife. There was simply nothing in the evidence that would cause me to consider that the complainant might have an improper or ulterior interest in the outcome. But this is, of course, only one of many factors in a credibility assessment. 69 . This brings me to another brief but poignant part of the testimony of the complainant.

When she described the wife coming into the trailer, while she and the accused were on the bed, she stated that the wife “didn’t say anything, she didn’t do anything.” I emphasize these words because that is the emphasis that I heard from the complainant as I watched her and listened to her testimony. The words conveyed to me the complainant’s sense of betrayal by the wife, someone she trusted as an adult. 70 . After the trial, I listened to the audio recording of the complainant’s testimony because of concerns I had with her testimony as described above.

The recording (and no doubt the transcript, should there be a need for one) does not fully convey the impression I had from both watching and hearing the complainant on the stand as she spoke those words, but I heard in those words a condemnation of the wife for not reacting to seeing her on the bed with her husband. The complainant did go on to say that she was not sure the wife saw what happened. At the very least, the wife would have seen them on the bed together. 71 . This brings me to a detail of the Sutherland trailer that I stated above I would address.

As I stated, I find the evidence regarding the interior, exterior and location of the trailers to be peripheral to the issue of the assault except evidence regarding the presence, or not, of a door to the bedroom of the trailer. To be clear, the wife of the accused testified that upon entering the trailer, a person could see the bedroom and that there was no door to the bedroom. This accords with the complainant’s testimony that I interpreted as being condemnatory of the wife seeing the complainant in the bed with her husband and not reacting. 72 .

The complainant testified to not knowing if there was a door to the bedroom. She further clarified that when she said the door was closed to the social worker, in an earlier statement, she was referring to the exterior or main door to the camper. I therefore find nothing contradictory between the evidence of the complainant and the wife of the accused regarding the presence, or not, of a door to the bedroom. In fact, I accept the evidence of the wife that there was not a door to the bedroom. 73 .

I acknowledge that on the face of it a denial by a person alleged to be a witness to circumstances consistent with a complainant’s allegation of assault should raise a reasonable doubt, if believed. In this case, I do not believe the wife of the accused. I believe she did see the accused on the bed with the complainant consistent with the complainant’s testimony and that she did not visibly react to the scene except to exit the trailer soon after with the complainant. 74 . The very fact the complainant testified that the wife was a witness to her being on the bed with the accused is compelling.

A complainant intent on fabricating evidence, as the defence suggests (but is not required to explain or prove) is unlikely to introduce a witness, particularly one married to the accused, as part of the fabrication. Again, I say this not to suggest that the accused must explain why the complainant might be fabricating evidence, but as part of my assessment of the complainant’s credibility in the context of all of the evidence. 75 . The wife denied having seen the complainant and her husband on the bed. I do not accept this evidence in the face of the evidence of the complainant.

I find that the wife has a significant interest in the outcome of this proceeding. A finding of guilt against a husband/father/grandfather, in a supportive and intact family as the Sutherland family, would no doubt be an unbearable blow and rupture to the family. 76 . I say “supportive and intact,” referring to the Sutherland family, as this is what was conveyed to me from the testimony of the wife when she referenced her 35 year marriage to the accused and the presence of her son, daughter and son-in-law, in the courtroom during the proceeding. 77 .

In light of my finding that the accused did touch the complainant on the bare bum under her clothes, I conclude that the accused is indeed guilty of having sexually assaulted C.D. 78 . A sentencing hearing will follow. ______________________________ Kathryn A. Gregory, J.C.K.B.