R. v. P.H., 2019 NLSC 125

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. P.H. , 2019 NLSC 125 Date : June 20, 2019 Docket : 201808G0026 Her Majesty The Queen v. P. H. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. Before: Justice Frances J. Knickle Edited Transcript of Oral Reasons for Judgment Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: June 10 and 11, 2019 Date of Oral Judgment: June 14, 2019

Summary: The Complainant met the Accused and S.T. by chance one night walking home. The Complainant alleged that when she rebuffed theAccused’s advances, and started to leave, he chased her, forced her to the ground and forced sexual intercourse upon her. She screamedfor help but the Accused punched and smothered her. The assault stopped when M.B. came upon the scene after hearing the screams. DNA established there was sexual intercourse. Photos taken shortly after showed injuries to the Complainant, and the extent to whichher clothes were soiled.

The Accused testified he may have had intercourse but did not remember having so done and argued theintercourse must have been consensual. Neither the Accused’s testimony, nor a consideration of all the evidence raised a reasonabledoubt. The Complainant was credible and corroborated by the other evidence. Upon review of all the evidence accepted by the Court,the Accused was found guilty of the offence. Appearances: Stephen A. Anstey Appearing on behalf of the Crown Dana M. MacSween Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v.

McNeill (2000), (ON CA), 33 C.R. (5th) 390, 48 O.R. (3d) 212 (C.A.); R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. v.K.P., 2019 NLCA 37; R. v. Y. (C.L.), 2008 SCC 2; R. v. Gagnon, 2006 SCC 17; R. v. Best 2016 NLCA 10; R. v. Campbell, (BC CA), [1998] B.C.J. No. 27, 101 B.C.A.C. 271; R. v. Campbell, (SCC), [1998] 3 S.C.R. 533, [1998] S.C.J.No. 88; R. v. Ewanchuk, 1999 SCC 711 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] The Accused is charged with having committed a sexual assault causing bodily harm against the Complainant, C.D. contraryto section 272(1)(

c) of the Criminal Code, R.S.C. 1985, c. C-46. This is the decision on verdict. For the reasons that follow I find theAccused guilty of the offence as charged. [2] There were several witnesses who testified as well as expert and medical evidence. The Accused also testified. The testimonyof the witnesses is reviewed in detail. Constable Kristy Sturge [3] Constable Sturge testified she has been with the Royal Canadian Mounted Police (RCMP) since 2007 and was stationed in Labrador in 2016, in the community where the offence was alleged to have occurred.

On the date in question, June 1st, 2016, at 3:38am,she received a call from the RCMP’s central dispatch. The dispatch advised that the father of the Complainant had reported that hisdaughter had been sexually assaulted. [4] Upon arriving at the residence of the Complainant, Constable Sturge had an opportunity to observe the Complainant, whoanswered the door. Constable Sturge described the Complainant as disheveled with dirt all over her clothes and face, as well as blood allover her face. Her face also appeared swollen. The Complainant was upset.

Upon confirming with the Complainant what happened,Constable Sturge arranged to take her to the health clinic in the community, where she could be examined by a medical practitioner, anda sexual assault kit completed. [5] En route to the clinic, the Complainant pointed out the area where the alleged assault occurred and named the perpetrator. Constable Sturge testified that she stopped her vehicle where the Complainant indicated and made some observations of the area. Shecould see that the sand and dirt had been disturbed, and there was what appeared to be blood on the ground.

[ 6 ] At the clinic, the Complainant was examined, and a sexual assault kit was completed; including a vaginal swab. Constable Sturge also seized the Complainant’s clothing and the swabs. At her request, the Complainant was taken to her brother’s house. [ 7 ] Photographs taken by Constable Sturge were tendered (K.S. #1). They showed the back of Complainant in the clothes she was wearing at the time the police arrived, covered in sand and dirt. There were also photos showing the Complainant’s face which appeared swollen and covered in blood.

There was a further photo, with her face having been cleaned of the blood that showed several scratch marks around her nose and mouth. Constable Sturge also took photographs of the area that had been pointed out to her by the Complainant on the way to the health clinic. The photos showed a sandy area, with red staining. [ 8 ] Constable Sturge also testified that two days after the allegations arose, she seized and took photos of an iPod device given to her by the Complainant. The Complainat told Constable Sturge that it had been given to her by S.T.

The device showed a conversation via social media between S.T. and, as far as Constable Sturge understood, the Accused. Constable Sturge took photographs of the screens showing the text conversation. These photographs were tendered as K.S. #2. [ 9 ] The vaginal swab and blood sample from the Complainant were sent to the RCMP Forensic Laboratory for analysis. Upon confirming that there was a male contributor to the fluid on the vaginal swab, the Police obtained a warrant to seize the Accused’s DNA (The admissibility of that DNA was determined at an earlier hearing). There was further analysis.

The reports on the analysis prepared by the forensic lab were tendered by consent (Consent #1).

The conclusion of the analysis was that the DNA of the Accused matched the DNA of the “male contributor” found on the vaginal swab taken from the Complainant. [ 10 ] Medical records (Consent #2) were tendered and confirmed the presence of multiple abrasions on the Complainant’s face and stated: Face covered with blood, clothes bloody and full of mud and sand...Bruise R lateral lower leg, scratch RT lateral thigh, abrasion to interior bottom lip, tender upper lip, hematoma L mid forehead, red mark above breast… [ 11 ] The medical records also described the Complainant’s vaginal area as “red and swollen”.

The Testimony of the Complainant [ 12 ] The Complainant testified she was 23 years old and born in December of 1996. She testified she knew the Accused as he had been the boyfriend of her sister. She testified the couple were “broken up” at the time of the alleged assault. The Complainant testified that she was walking home after having been at the bar when she met up with the Accused and S.T. She also knew S.T. S.T had some “Lambs” rum and the trio went into the woods to drink “shot s ”. S.T. left to go home, and the Complainant remained with the Accused.

She testified they were “just talking”. [ 13 ] The Complainant testified that she told the Accused she was going home, and he started to try and take her clothes off. The Accused asked to “see her” which she explained meant to “have sex” with her. She stated she replied “No” and told him she was going home and proceeded on her way. The Accused chased after her. He caught up with her and knocked her, “face down”, to the ground. The Complainant stated she tried to get away but he started punching her in the face.

She screamed, but he “smothered” her by covering her mouth with his hand. [ 14 ] She testified she was wearing jeans and blue jacket and a T-shirt. She testified that the Accused took off his pants, and pulled her underwear down and forced his penis in her vagina. She testified she did not want to move and was crying. The Complainant testified she was moving her face back and forth trying to get free. She was not sure how she received the scratches and bruising. It could had been from his hand covering her mouth or from the sand and dirt where she had fallen.

She testified that she did not have these injuries prior to the attack. She stated her sneakers were off. She did not remember what the Accused was wearing. [ 15 ] When asked how much she had to drink, she did not recall, but agreed both she and the Accused were drunk. She testified she could tell by the Accused’s face. She also stated S.T. was drunk and she could tell because he was staggering. She testified that M.B. was sober. She did not recall what time the incident happened, but stated it was dark.

She also remembered that S.T. returned after the incident. [ 16 ] The Complainant stated she told M.B. to walk her home. It was agreed by all the witnesses that her home was very close to where the alleged incident occurred. She woke up her father and told him what happened. Her father then telephoned the police. Both S.T. and the Accused arrived at her house, but left again before the police arrived. When asked if she wanted the Accused to have intercourse with her, she replied “No”. When asked, the Complainant did not know what was meant by the word “ejaculate” but confirmed that the Accused did not “come”.

When asked if he said anything, she replied “No”. The intercourse stopped when her friend, M.B. happened upon the two. The entirety of the event, from the time in the woods when he started to chase her until the intercourse stopped was maybe 10 minutes. [ 17 ] The Complainant testified that she went to the clinic herself, and had a rape kit completed. When asked, she stated she did not talk to anyone about the incident. She also did not recall turning over any items to the police.

When asked if she had spoken to the Accused after the incident, the Complainant agreed that she had, and stated she still babysat for the Accused and her sister’s children. She stated we are “still close”. At the time “he was like a brother to me”. She further testified that the Accused apologized to her for what happened about a month after the incident. The Complainant was firm that what he apologized for “raping her”. [ 18 ] On cross-examination the Complainant agreed that there were some parts of the evening she did not remember, however she remembered what happened between she, the Accused and S.T.

The Complainant was asked if she spoke to anyone about the incident, besides the police. The Complainant stated no. It was then put to her that in her direct-examination that she stated she spoke to the Accused, and said he had apologized. The Complainant stated “He did apologize”, and agreed she had spoken to him. [ 19 ] It was put to her on cross-examination that she could have received the injuries when she had fallen through the ice. The Complainant agreed it was possible, but testified she went through the ice when she was running away from the Accused. She testified

when she fell through the ice, the hole was only about two feet in depth. [ 20 ] She believed she received the injuries during the assault. She testified that the dirt on her clothes was from being forced to the ground. [ 21 ] She also agreed she was at a friend’s apartment after having gone to the bar, before she met up with the Accused and S.T. but admitted she did not remember going there. [ 22 ] She was asked if S.T. could have been the one who attacked her. She said it was not possible. The Testimony of S.T. [ 23 ] S.T. testified he has known the Accused all his life. They grew up together.

He also was familiar with the Complainant as someone who lives in the community. S.T. stated “Everyone knows everyone”. [ 24 ] When asked about the night in question, S.T. testified he did not remember much. He stated he was drinking at his friend’s house, and the Accused was there. He started to “run low” on alcohol so he decided to leave to acquire some more. S.T. asked the Accused if he wanted to come with him. He stated they met the Complainant walking home alone and they were laughing and talking. He testified that he left the Accused and the Complainant, and there was “tickling” going on between the two.

S.T. stated he thought it was a “private” matter so he left. He also stated he “was pretty drunk that night” and all he thought about was “my booze”. [ 25 ] He returned to where he had left the Accused and the Complainant somewhere between 20 minutes to an hour later. He testified that there others in the area, the Accused’s cousin, G.H., and K.O. S.T. asked what happened because the Complainant’s coat was covered in dirt. When asked if she had any injuiries, he thought she may have had a bruise on her face, but could not remember.

He testified that they walked her home and that her father started blaming him, but he “wasn’t even there”. [ 26 ] He confirmed that the Accused had been drinking. He did not know how much, stating that the Accused did not “drink much” generally. [ 27 ] S.T. stated there was no plan to meet up with the Complainant. It was by accident that they did. He confirmed that he gave some “Lambs” to the Complainant. He stated it was not enough for him to care. He did not recall if the Accused said anything when he returned.

When asked how much he had to drink that evening, S.T. he could not remember saying “This was three years ago”. S.T. testified it was not dark and not light when the incident occurred, but “that in between” time, “just before the sun comes up”. [ 28 ] S.T. was then asked whether he had a text message conversation with the Accused, and was shown K.S. #2, the photographs of screenshots of the conversation on the iPod given to Constable Sturge by the Complainant. S.T. confirmed he had given the iPod to the Complainant, but testified he had no idea why.

He did not recognize the substance of the conversation but confirmed that it was him, and that the conversation was with the Accused’s social media account. He testified as far as he knew, he had never had a conversation with that account and it was not the Accused to whom he was communicating. He testified the darker shaded areas with the white text were him, and the lighter shaded areas with the dark text were the words of the Accused. [ 29 ] On cross-examination he was asked if it was possible if part of the conversation could have been deleted.

S.T. stated no because that feature was not possible at the time he had the conversation in question. He stated if he had tried to delete one part, he would have to delete the whole conversation. When asked how he knew the conversation was with the Accused, S.T. replied, “I don’t know to be honest”. [ 30 ] S.T. also agreed because of the amount he had to drink that there were parts of the evening he did not remember. He testified he remembered thinking that he was going to have to fight the Complainant’s father, because her father was accusing him of being the one who had assaulted the Complainant.

The testimony of M. B. [ 31 ] M.B. testified that he knows both Accused and the Complainant. He testified he has been friends with the Complainant since they were kids. He testified that on the evening in question he could not sleep so had been walking around for about an hour, when he heard screaming. He could not say who was screaming, but when he went to the location from where the screaming was emanating, he saw the Complainant on the ground pulling up her pants, and the Accused pulling up his pants. He stated that the Complainant was yelling that the Accused had raped her and beat her up.

The Accused was denying that he “done anything”. M.B. could not remember exactly what the Accused said, just that he denied having done anything. He described the Complainant’s face as “swollen and bloody”. He testified that he did not recognize her at first because her face was so swollen. He could not tell where the blood was coming from. [ 32 ] He could also tell that both the Complainant and the Accused had been drinking. He could tell by their faces and the way they were speaking. [ 33 ] He walked the Complainant home and waited for the police to arrive.

Once the police were called, he went home to go to sleep. M.B. testified that he had not been drinking that evening and was sober. He said there was no one else there when he came upon the Accused and the Complainant. M.B. said S.T. arrived shortly after he arrived. [ 34 ] On cross-examination he agreed that he did not see the Accused hurt the Complainant. The testimony of K.O. [ 35 ] K.O. testified he has known the Accused all his life. He had been drinking that evening, at his cousin’s house, N., where the Accused and S.T. had also been drinking.

He stated four of them, the Accused, S.T., and he and G.H. the Accused’s cousin, left and were walking down the road. He stated that the Accused and S.T. went one way and he and G.H. went another way. He stated he and

G.H. went to another friend’s house. They left that location and while walking they heard what sounded like an argument. They could not say what the arguments was about or who was arguing. They went toward the sound and came upon the Accused, the Complainant, and M.B. S.T. showed up a couple of moments later. [ 36 ] He stated they all walked the Complainant home. When asked why, K.O. stated “She was hurt” and “bleeding on her face”. He could not recall any other injuries. He could not say if she was “really drunk”.

When he heard the arguing he thought he heard the Accused’s and S.T.’s voices and he thought “his friends were in trouble”. But he did not remember the words. [ 37 ] He said it was dark at the time, perhaps 2 am. There was street lighting in the area (All the witnesses agreed there was street lighting in the area). When asked to describe the Complainant’s demeanour, K.O. stated “She was sad, I guess”. She was “crying and not happy”. [ 38 ] K.O thought he may have had 8 beers, but it had been 3 three years since the incident so he could not remember.

On a scale of between one and ten (ten being “loaded drunk”) he stated he was about a six. He agreed the Accused was intoxicated. He could not say if the Complainant or M.B. was intoxicated. [ 39 ] On cross-examination, K.O. agreed that he did not see the Accused hurt the Complainant. The testimony of G.H. [ 40 ] G.H. is the Accused’s cousin. He knows the Complainant because she is from the community. He stated he had been drinking at the bar with a “buddy”. The bar closed, his friend went home, and he went to another friend’s house where they played some guitar. He met up with K.O while walking home.

He testified they could hear arguing and yelling. They approached the area and could see the Complainant and the Accused arguing. There was a third person there, but because that person was wearing a hoodie, G.H. could not identify the person. [ 41 ] G.H. testified that the Complainant was accusing the Accused of having raped her, and the Accused was denying it. G.H. stated that everyone was pretty drunk. The Complainant was “scratched up” and blood all over her face, or mostly her face. [ 42 ] G.H. stated he had “mostly beer”. He thought the Accused was intoxicated when he saw him, but was not too sure why.

He thought the Complainant was intoxicated because she was “off balance”. G.H. stated the Accused barely drinks, but when he does drink, he agreed it was somewhere between “a lot and a little”. He recalled that the Accused did not have his coat, so they went to the Complainant’s house to see if it was there. He could not say if the coat was retrieved from the Complainant’s house. [ 43 ] On cross-examination he stated the Complainant was drunk. He agreed that he did not see the Accused hurt the Complainant.

The testimony of the Complainant’s father, T.O. [ 44 ] The Complainant’s father testified that the Accused was the common law partner of his other daughter, and the father of his “great” grand children. He did not know the Accused very well at the time of the alleged incident. [ 45 ] He testified that the Complainant came home, and woke up he and his partner. He described that the Complainant’s “clothes were dirty and she was shaken up”. T.O. understood that someone had chased her. He described a “little bit” of blood and scratches on her face.

He testified there was a commotion in the living room and M.B was there in the house, who was a stranger to T.O. He also stated that he thought he smelled marijuana from M.B. [ 46 ] T.O. stated it was getting daylight out, and he went out on the step, and two “guy s ” were there who were “loaded”, namely, S.T. and the Accused. He said S.T. had to hold the Accused up. They were staggering and loaded drunk. T.O. stated when he went to phone the police, the two “barged” in.

He stated it was about a half hour later that the police arrived. [ 47 ] He stated the Complainant was aggressive and yelling at the Accused and S.T. to “get out”. T.O. testified he did not really know what happened until later on, but that he “jumped the gun” by calling the police. He stated this repeatedly during his testimony. [ 48 ] He said that the Accused apologized at a later date. He was asked several times for what did the Accused apologize. T.O. eventually stated that it could have been for being drunk in his home. He testified that the Complainant and the Accused “bonded” after this incident.

He said “we have been together since the incident”, that the Accused no longer drank and they tried to help each other as a family. He said that his other daughter and the Accused were together at the time. [ 49 ] On cross-examination, T.O. stated the Complainant, S.T. and the Accused were really drunk. He stated that S.T. was “cocky” and was going to fight anybody. He thought it was 3 a.m. when they came to the house. The testimony of the Accused [ 50 ] The Accused testified that he is 26 and is a carpenter with the Nunatsiavut Group of companies. He testified he had blackouts on the evening in question.

He testified he tried to go home and followed S.T. They met up with K.O. and G.H., and the Complainant. He stated he then blacked out, which he suggested happened several times. The next thing he remembered was that S.T. was on his knees and the Complainant was on her back. [ 51 ] The Accused stated he got up and left, because he did not want to be around “that”. He stated the next thing he remembered was that the Complainant ran past him, and he tried to catch up with her. The next thing he remembered was that M.B. came around. He did not know where S.T. had gone.

He could not say if he had intercourse, because he blacked out. He stated that M.B. walked the Complainant home. He stated that he met up with S.T. again. [ 52 ] He also remembered walking after the Complainant, and then T.O. gripping his shoulder. T.O. then let the Accused go, and he

left because T.O. was calling the police. [53] The Accused testified that the Complainant seemed intoxicated. He stated she is the “Auntie” of his daughters and mostlybabysits for he and his partner, the Complainant’s sister. [54] He stated he did not talk to the Complainant about the incident, or anyone else. He agreed it was possible they had sex but hedid not remember anything else. He stated he was dating the Complainant’s sister when this happened. [55] On cross-examination he was shown the photographs of the text messaging conversation from S.T.’s iPod (K.S. #2).

Heagreed he was one of the persons in the conversation as he recognized the profile picture as his. He had no memory of the conversationbut agreed with what was said. [56] He agreed again, that he may have had sexual intercourse with the Complainant stating that he has woken several times withhis pants down and being with several girls. [57] There were no further witnesses for the Defence. [58] Prior to cross-examination of the Accused, the Crown argued that the Accused had testified to matters regarding the conduct ofS.T. that was neither put to S.T. nor the Complainant. The Crown submitted, as per: R. v.

McNeill (2000), (ON CA),33 C.R. (5th) 390, 48 O.R. (3d) 212 (C.A.), the Crown should be permitted to have the Complainant and S.T. recalled so this aspect ofthe Accused’s evidence could be put directly to them. In the alternative, an adverse inference should be drawn against the Accused. [59] Counsel for the Accused conceded that the specific description of S.T. and the Complainant by the Accused was not directlyput to either S.T. or the Complainant, and was unknown to her until the Accused raised it in testimony. [60] The Crown was permitted to recall S.T. and the Complainant. The Crown chose to recall only S.T.

Defence counsel then putto S.T. that he may have been responsible for the assault, of which he denied. The Crown asserted the question did not adequatelydescribe the Accused’s testimony. The Court, without objection from the parties, explained to S.T. that there had been evidence that hewas seen on his knees with the Complainant who was on her back. He was not told this was stated by the Accused. In response, S.T.stated “What?” and denied any such conduct. S.T. stated “That sounds made up”. Neither counsel pursued any further questioning andS.T. was excused.

ISSUES [61] The Crown must prove beyond a reasonable doubt that there was a sexual assault that caused bodily harm to the Complainant.

The elements of the offence can be stated as follows: - there was an application of force - in the circumstances of sexual nature - by the Accused upon the Complainant - without the consent of the Complainant - that the Accused intend to apply that force - that the Accused knew the Complainant did not consent - that the assault caused bodily harm to the Complainant that was reasonably forseeable to the Accused. [62] However, before addressing whether or not the evidence has established the elements of the offence as described above, it ishelpful to review the principles governing a criminal trial.

THE STANDARD OF PROOF [63] In a criminal trial, the onus is on the prosecution to prove all the elements of the offence charged beyond a reasonable doubt. That onus never shifts. (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubt iscloser to absolute certainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40). It is not enough to be satisfied that theAccused “probably” or “more likely than not” committed the offences.

On the criminal standard, a court must be satisfied well beyondthis level of certainty. [64] In this case, because the Accused testified, in deciding whether the offences have been proven, the Court must also becognizant of the instruction in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. This approach is to ensure that in a case wherethere may be competing versions as to what occurred, the court does not fall into the trap of simply choosing between the two contestedversions of events, but renders its verdict on an assessment of all the evidence.

It is always helpful to review the framework of W.(D.). [65] Firstly, if the evidence of the Accused is believed and would support a finding of not guilty, the Court must find the Accusednot guilty. [66] Secondly, even if the Accused’s evidence is not believed, if the Court is left with a reasonable doubt by the evidence, then theAccused must be acquitted. [67] Finally, even if the evidence of the Accused does not raise a reasonable doubt, the Court must still assess all the evidence that itdoes accept, to determine if the evidence supports beyond a reasonable doubt that the offences occurred.

[ 68 ] A reasonable doubt may arise also because of a lack of evidence ( Lifchus at para. 30 ). Our Court recently commented on the framework in W.D , in R. v. K.P ., 2019 NLCA 37 referring to the Supreme Court of Canada’s statements in R. v. Y. (C.L.) , 2008 SCC 2 .

A t paragraph 60, the Court of Appeal stated: [60] The majority of the Supreme Court of Canada in C.L.Y. noted that “what W.(D.) offered was a helpful map…”, the purpose of which was to ensure “… the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, [triers of fact] are left with a reasonable doubt as to the accused’s guilt…” ( C.L.Y ., paragraph 8 ). [ 69 ] The approach is not to simply choose between conflicting versions of events, but to assess all of the evidence to determine whether or not the evidence satisfies the Court beyond a reasonable doubt that the offence was committed by the Accused. [ 70 ] In the circumstances of this case, there is conflicting evidence between the witnesses; not just the Accused and the Complainant, but also between, for example, the evidence of S.T and the Accused, and M.B. and the Accused, and the Complainant and Constable Sturge.

Given this, it is appropriate to review the principles governing the assessment of credibility of witnesses. [ 71 ] The assessment of the credibility of a witness as well as the veracity of a witness’s testimony is not a formulaic process; but the culmination of a number of considerations such as, but not limited to, how the witness responded to questions, were they argumentative, were they responsive to questions, their recall, their opportunity to observe the event, or any inconsistencies in their evidence standing alone, or in relation to the other evidence called.

In assessing the witnesses I also keep in mind the words of the Supreme Court of Canada in R. v. Gagnon , 2006 SCC 17 at paragraph 20 : Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. [ 72 ] I also keep in mind the further comments of our Court of Appeal in K.P . , at paragraphs 42 and 47 . Referring to their previous decision of R. v.

Best , 2016 NLCA 10 , the court reminds of us that as the Trial Judge, in considering the evidence of a witness, I may accept all, some or none of the evidence of a witness. At paragraph 47 the court stated: [47] As this Court has stated in R. v. Best , 2016 NLCA 10 , it is a trial judge’s duty to consider the evidence of each witness and determine whether some, all or none of the evidence is accepted or rejected: [6] Regardless of the Judge's general comments about the Complainant's credibility, regard must be had to basic principles about the assessment of a witness's credibility.

A judge or any trier of fact can accept "all, some or none" of a witness's evidence. In other words, because a judge accepts a witness's testimony on some points does not mean that he or she must accept that witness's testimony on all or any other points. Conversely, a judge need not reject a witness's evidence on all or any other points because he or she does not accept that witness's evidence on some points.

It is a trial judge's duty to consider and weigh individual pieces of evidence, including the testimony proffered by individual witnesses, in the context of all the evidence, and he or she does not err in accepting some and rejecting other evidence from the same witness provided that he or she applies the applicable law and gives adequate reasons for his or her decision. [ 73 ] I also keep in mind that it is not at all surprising that witnesses may have different perceptions of the same event, and so may describe things differently. [ 74 ] With all of the above in mind, I will review the testimony of the witnesses, and explain what evidence I have accepted and why. [ 75 ] Constable Sturge’s evidence was not contentious.

While she referred to her notes to refresh her memory, it was solely with respect to details one might not be expected to remember, such as the number of an exhibit seized by her, or the exact time as to an event. She otherwise testified from memory and had good recall of the events she observed. She was not challenged in cross- examination. I found her evidence straightforward and reliable. I accept her observations of the Complainant on the night in question, and her observations of the area that had been pointed out to her by the Complainant on the way to the clinic.

I also accept her testimony that the Complainant gave her an iPod device, and that device contained a text conversation of which she did not alter, and of which she took photographs. [ 76 ] I found S.T., generally to be a credible witness. While he may have minimized some of what he observed that evening, and his recall admittedly was not strong at times, he generally answered questions in a forthright manner.

For example, on the one hand, he was candid that he gave his iPod to the Complainant, “to do with as she pleased” and confirmed the device contained a conversation with whom he believed to be the Accused. (While he had no recollection as to the actual conversation, he was forthright that whatever was said was not altered because, as he understood, there was no such feature on the particular social media platform he used at that time.) I accept his evidence that the text messages were between he and the Accused.

Based on Constable Sturge’s evidence as to when she came into possession of the iPod, it is clear the conversation occurred within days of the alleged assault, if not the next day [ 77 ] S.T. was less candid about what he observed of the Complainant when he returned to the area. For example, in light of the photographs, and the observations by Constable Sturge, and M.B., S.T.’s testimony that he thought the Complainant “had a bruise” on her face, is an understatement. Perhaps his admitted lack of sobriety explains the lack of his observations.

But it is in stark contrast to the evidence of M.B. who was sober, and testified the Complainant’s face was so swollen he did not recognize her at first. [ 78 ] I accept S.T’s evidence that the Complainant was upset although he also seemed to describe this as more subdued than M.B. [ 79 ] I also accept his testimony that it was not he who committed the assault. Indeed, this assertion is corroborated by the Complainant and M.B.. She gave no evidence that he was in way involved in sexually assaulting her. M.B., testified that it was after he arrived that S.T. came upon the scene.

K.O. also supports that S.T. arrived at the scene after the fact. This evidence supports S.T.’s evidence that he did not assault the Complainant.

[ 80 ] I also accept his evidence that their meeting the Complainant was by chance. This accords with the evidence from the Complainant, that it was while she was walking home and met the Accused and S.T. It is also in general agreement with the narrative of all witnesses; that each was at various places over the evening, and arrived at the place where the alleged assault occurred at different times. [ 81 ] I found M.B. to be a credible witness. He testified in a calm manner and did not embellish or minimize his evidence. He was clear about what he did and did not remember, and what he did and did not see.

He was the only sober witness to the alleged incident at the scene. I found his evidence compelling and accept it in its entirety. His evidence corroborates much of the account by the Complainant, and S.T. [ 82 ] K.O., a friend of the Accused, was not as strong a witness. His memory was poor, and his account was confusing at times. For example, when asked of the Complainant’s demeanour, his response was “she was sad, I guess. She was crying, she was not happy”. When considered with the evidence of M.B., for example, I find that K.O., tended to downplay what he observed and what was said.

However, I do accept his recollection that he and G. H., while walking home, heard yelling or screaming, and that when they approached the area he observed the Accused, the Complainant and M.B., and that S.T. arrived shortly afterwards. [ 83 ] G.H., the cousin of the Accused, was a brief witness. His observations were not detailed and he also seemed to minimize the events.

However, his evidence is generally consistent with the other evidence that there was some kind of an altercation between the Accused and the Complainant, and M.B. was present, when G.H. and K.O. arrived. [ 84 ] I found the Accused was candid with respect to some of the questions put to him. For example, he conceded the text conversation as being between he and S.T. He did not need to do this. He also conceded that he could have had sexual intercourse with the Complainant. However, he also persistently tried to suggest if there was intercourse it was consensual because “she did it before”.

The Crown objected strongly to him testifying to such an explanation without the proper ruling on admissibility. I agree, and disregard it in its entirety as being inadmissible and irrelevant. [ 85 ] His testimony is also difficult to reconcile with the other witnesses. For example, the evidence from M.B. and K.O. and G.H. was that he denied having done anything. His text messages to S.T. a day or two afterwards is that he did not touch the Complainant, and in fact intended to tell the police that they found her “beaten”.

These are inconsistent with his admission that he may have had sexual intercourse with her. [ 86 ] It is also difficult to reconcile his admission that he may have had sexual intercourse with the Complainant, with his assertion that he saw that S.T. on his knees by the Complainant, implying that S.T. may have been the perpetrator. This evidence is also contradicted by M.B. and K.O. and S.T. [ 87 ] Further, his recollection of the evening was very poor. This may have been due to his level of intoxication.

There is no dispute amongst the witnesses that the Accused was heavily impaired. [ 88 ] When his evidence is considered with all the other evidence I do not believe his assertion that if he had sexual intercourse with the Complainant it was consensual. I reject his evidence in this regard. Firstly, his evidence that it was consensual is speculation on his part. He admitted he does not know.

It is also incongruous with the injuries suffered by the Complainant, and that she was screaming for help and trying to get away from him, leaving aside that she actually said “No” to his sexual advance towards her immediately prior. [ 89 ] The testimony of the Complainant was compelling and I accept the entirety of her account of the assault. Although she appeared a reluctant witness often pausing in her responses, she also appeared to listen carefully to all questions and answered all questions in my view, honestly. [ 90 ] She did not embellish and was clear about what she could or could not remember.

Unlike other witnesses, her explanation as to what she did and did not remember did not convey to me that she was being selective about her memory. To the contrary, she readily conceded that there were parts of the evening she did not remember. When it was suggested to her that her memory was not accurate or clear about the alleged assault however, she responded she “did” remember what happened with S.T. and the Accused. She did not relent in any way in this regard.

Nor was she was seriously challenged as to her recall of the events of the alleged assault itself. [ 91 ] I have considered that her recall as to how she received her injuries was not precise. The Complainant testified she could not be certain whether they occurred when she was pushed to the ground on her face, or when she was moving her face back and forth when the Accused was smothering her with his hand.

She did not think she had received the injuries when she went through the ice, because, as she stated it was only a couple of “feet deep”. [ 92 ] I have also considered that her testimony that she went to the clinic herself is inconsistent with Constable Sturge’s evidence that she took the Complainant to the clinic. But, in my view, this is not the kind of inconsistency that is material. [ 93 ] Her lack of recall as to having given the iPod to the police, also suggests she was not being selective about what she did and did not remember.

While I accept that one might have thought she would have remembered this event, I accept that the Complainant honestly did not recall so doing. When I consider this with all her evidence, I accept that the events that she does remember, in particular who assaulted her and how she was assaulted are credible and reliable accounts. [ 94 ] Her explanation as to how the assault occurred was cogent and consistent with the other evidence.

She was not challenged that her evidence was inconsistent in any material way, except that it was suggested that her testimony that she “did not talk to anyone” about the incident, was inconsistent with her testimony that she spoke to the Accused and he apologized to her. I do not see this as an inconsistency. The encounter with the Accused, where her father was present and the Accused apologized, was a specific stand alone event and can be reconciled on that basis with the tenor of the question “did you speak to anyone, after the incident” which, in my view, was broad in nature.

I do not find this evidence undermines her credibility. [ 95 ] Not only did her narrative as to what happened have an internal logic, her evidence is corroborated by much of the other

evidence, not only by the DNA, but the observations of Constable Sturge, by M.B., S.T. and to a lesser extent, G.H. and K.O. [96] I have no difficulty in accepting her testimony. [97] Finally, I turn to the testimony of T.O. I found T.O. to be an argumentative and evasive witness. Counsel asked the samequestion several times, yet T.O. persistently failed to respond to the question being asked. In particular, T.O.’s evidence as to why theAccused apologized was difficult to understand.

T.O. was present for this apparent apology (for which the Accused denied occurred),yet the Crown had to ask the question several times before obtaining a response. T.O. persistently responded with answers that werecompletely unrelated to the question. T.O. eventually responded that he thought the apology might have been for barging into his house. [98] I also found that T.O. exaggerated the level of intoxication of the Accused when he was observed in T.O.’s home. I accept thatthe Accused was drunk, even “really” drunk as this was consistent with the evidence of all the witnesses.

But the description by T.O.that the Accused “did not know where he was” and “had to be held up”, is not supported by the other witnesses, including the Accused. While the Accused’s memory is poor, he was clear that he remembered T.O. grabbing him by the shoulders, and leaving before thepolice arrived.

Likewise, making the decision to leave before the police arrived, in my view, is not consistent with someone who is sodrunk they “did not know where they were” and “had to be held up” as testified to by T.O. [99] In my view, T.O. preferred to try and deflect blame from the Accused rather than simply state what he observed and what heknew.

This was evident in his persistent and irrelevant testimony as to the extent to which the Accused and his daughter and “bonded”since the incident, and how he had “jumped the gun” in calling the police, that it was a “hard system”, that he was “in the middle” andhad to keep the family together. This was unhelpful and unelicited testimony and was a persistent theme of his evidence rather thananswering the question being asked by counsel. [100] Having reviewed the evidence of the witnesses and explained the evidence that I accept I will now turn to the elements of theoffence as stated at paragraph 62.

However, before so doing, I want to explain my treatment of the text message conversation. TheCrown asserted there was clear evidence of the Accused concocting a story (that he found the Complainant after she had been assaulted)and trying to convince S.T. to do the same. Relying on R. v. Campbell, (BC CA), [1998] B.C.J. No. 27, 101B.C.A.C. 271 and confirmed in the Supreme Court at R. v. Campbell, (SCC), [1998] 3 S.C.R. 533, [1998] S.C.J.

No.88, the Crown argued that this is after the fact conduct that supports that the Accused knew he had committed the offence, because hehad to make up a story to maintain his innocence. [101] I have reviewed the messages. I accept the Crown’s view is one possible

interpretation of what was intended by the Accused. However, when read in the entire context of the conversation. I am unsure the conversation is of much assistance to the Court indetermining the intentions of the Accused regarding the alleged assault. While there is no evidence that the messages were altered, onehas to be careful reading this kind of communication, and it is easy to misread the intention of the communication. [102] I consider that the Accused, while not remembering the conversation, didn’t disagree with what was said.

However, he testifiedwhen he said “my story” in the messages, he did not mean something he was going to falsify, but what had happened. [103] While I am not satisfied the texts are evidence of an intention to fabricate evidence, I view the texts that “they came upon theComplainant afterwards” as being inconsistent with his testimony that he and S.T. were with the Complainant, but he blacked out, or hisadmission that he may have had consensual sex with the Complainant. These are three inconsistent versions by him as to what occurred.

While I am not prepared to find that he was intentionally trying to get S.T. to concoct a version of events, I do find that these are majorinconsistencies in his three accounts of what took place with the Complainant. I am giving little weight to these messages, except to theextent that as evidence of prior inconsistent statements, and undermine his overall credibility.

THE EVIDENCE IN RELATION TO THE ELEMENTS OF THE OFFENCE Was there an application of force in circumstances of a sexual nature upon the complainant by the Accused? [104] There is little dispute in this case, that there was an application of force in circumstances of a sexual nature. This establishes oneaspect of the actus reus of the offence: see R. v. Ewanchuk, 1999 SCC 711 at paragraph 25. [105] I accept that there was sexual intercourse between the Accused and the Complainant.

The Complainant provided direct evidencethat the Accused had sexual intercourse with her, the uncontested DNA analysis confirms that the DNA of the Accused was mixed in thefluids obtained from the Complainant’s vagina, which is consistent with intercourse having occurred, and the Accused himself concededthat “he may have had intercourse” with the Complainant. [106] Further, the evidence of M.B., which I accept in its totality, is that he observed both the Accused and the Complainant pulling uptheir pants.

This observation is consistent with the two having had sexual intercourse, because in order for the Accused to haveintercourse with the Complainant, they would both need to have their clothes removed enough to permit the Accused to place his penis inher vagina. [107] There is also the evidence of the Complainant, corroborated by the photographs, that she had dirt all over the back of her clothes.While not evidence that is directly indicative of intercourse, it is consistent with the Complainant’s evidence that she was lying on theground while the Accused had intercourse with her.

There was absolutely no other evidence or explanation as to how or why her clothesbecame soiled with dirt, and I accept that this happened during the intercourse. [108] On the basis of the above evidence, there is no doubt in my mind that the Accused and the Complainant had sexual intercourse. The sexual intercourse was without the consent of the Complainant. [109] This is another necessary component of the actus reus of the offence. As stated in Ewanchuk at paragraph 27, this determinationis from the perspective of the Complainant. At paragraph 30 the majority stated:

30 The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant.

That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [ 110 ] For the reasons discussed earlier, I accept the evidence from the Complainant that she did not consent. The Complainant testified that she did not want to have sexual intercourse with the Accused and tried to run away. She testified he had to force her to the ground and “cover” her mouth when she screamed and punch her in the face to effect sexual intercourse.

While there were no eyewitnesses to what happened, there were witnesses within earshot: M.B. in particular, who heard screaming. [ 111 ] Screaming and yelling for help, is evidence that she did not consent to the sexual contact. It is not consistent with consent to the intercourse, and I accept it has been proven that she did not consent to the intercourse, but was forced to submit to the sexual contact. [ 112 ] I have also considered to a lesser extent, her demeanor immediately afterwards.

That she was crying and injured, as seen by the witnesses who arrived, in my view is consistent that she had not consented to the sexual contact but had been forced to submit to the sexual contact. Indeed, she immediately yelled that the Accused had raped her.

While I do not rely on that particular statement for the truth of it’s contents as evidence that the Accused did sexually assault her, I do consider the fact of that conduct and response as observed by M.B. upon arriving at the scene, as being consistent in her assertion she did not consent. [ 113 ] To be clear, this is in no way to suggest that a complainant in a sexual assault must behave in a particular way.

But there is little difficulty in accepting that as a matter of common sense and experience, if the Complainant did not want to be thrown to the ground and have forced sexual assault upon her, as she testified, and was punched in the face repeatedly and smothered during the ordeal, it would not be surprising that she might be observed by others immediately afterwards, to be very upset, crying, covered in dirt, and accusing the perpetrator of wrongdoing. [ 114 ] The absence of such conduct would not necessarily mean there was a doubt about a lack of consent, but its presence in these particular circumstances, when viewed with all the evidence, in my view, strongly supports her testimony that she did not consent to the intercourse.

Given all of the above, I am satisfied beyond a reasonable doubt that the Complainant did not consent to the sexual contact. The Accused knew that the Complainant did not consent. [ 115 ] Whether or not the Accused knew that the sexual intercourse occurred without the consent of the Complainant is really the central issue in this case, and a necessary component of the mens rea .

As stated in Ewanchuk at paragraph 42: “the mens rea of sexual assault contains two elements: intention to touch, and knowing of or being reckless or willfully blind to a lack of consent on the part of the person touched”. [ 116 ] In this case, the Accused admitted he does not remember what happened but conceded he may have had sexual intercourse. There was no suggestion that if he so did, he did not intend to so do. To the contrary, his submission was that the Complainant consented.

As stated above, I am satisfied beyond a reasonable doubt that the Complainant did not consent. [ 117 ] In my view, there is no doubt on the evidence before me that the Accused intended to have the sexual contact and knew the Complainant did not consent. [ 118 ] Firstly, the uncontradicted evidence of the Complainant is that when the Accused made an advance towards her for sex, she explicitly told him “No”. She then tried to leave. This was a straightforward communication directly to the Accused communicating a lack of consent. Nothing more was needed and nothing could have been clearer.

He knew, at that point, by virtue of that communication that she did not consent. [ 119 ] The Accused’s decision to then chase her to pursue the sexual contact is clear evidence to me that despite being told “No”, he intended to have the sexual contact.

Even if the conduct of the Complainant by saying “no” and running away had not communicated adequately to the Accused her lack of consent, it defies belief that the need then by the Accused to subdue the Complainant by forcing her to the ground, then punching and “smothering” her in order to effect the sexual contact was anything other than a recognition by the Accused of the lack of consent of the Complainant. Her conduct was clear evidence of resisting the contact.

In these circumstances. resisting is incongruous with consenting to contact. [ 120 ] While I accept that all the parties were intoxicated, there is absolutely no evidence (except from T.O., which I reject) that the Accused was so intoxicated that he did not understand that in order to stop the Complainant from screaming he had to cover her mouth and punch her. This evidence, which I accept, is not consistent with the Accused not knowing that the Complainant did not consent to his contact with her.

To the contrary, the only logical inference to be drawn from this conduct by the Accused is that the Accused knew the Complainant was not consenting to sexual contact, and was prepared to force her to submit by punching her and smothering her to stop her screaming in defiance of that lack of consent. [ 121 ] The evidence of M.B. is also material to this determination. He heard the screaming and approached the scene.

This supports the Complainant’s testimony that the intercourse stopped only when M.B. arrived. [ 122 ] The conduct of the Accused, in stopping the intercourse with the Complainant when M.B arrived, after having punched and “smothered” the Complainant, and ignoring her “No”, is inconsistent with someone who does not know that the Complainant was not consenting to his contact, but more consistent with having full knowledge that she did not consent, and realizing that he had to stop because there was now a witness. [ 123 ] For the above reasons, I am satisfied beyond a reasonable doubt that when the Accused had sexual intercourse with the Complainant he knew fully that she did not consent to that contact.

[ 124 ] I reject any suggestion that the evidence of the Accused that he does not remember what happened has relevance to whether or not he knew the Complainant did not consent. His evidence that he does not remember what he did, is not evidence that he did not intend to do what he did at the time in question. The observations as described above belie any assertion that he had any other intention than to have sexual intercourse with the Complainant without her consent, whether he now remembers so doing or not.

The sexual assault caused bodily harm to the Complainant. [ 125 ] There is little dispute that the Complainant suffered bodily harm. The evidence of M.B. was that the Complainant’s face was so swollen he did not recognize her when he first observed her. The swelling of her face can be seen in the photographs.

The scratches and bruising can be seen, and the medical records support that there were abrasions and bruises. [ 126 ] While I accept these injuries are at the lower end of the spectrum of the kinds of injuries that constitute bodily harm, I am satisfied that these injuries were beyond trifling and transient, and reasonably foreseeable to the Accused. [ 127 ] I also accept the evidence of the Complainant that these injuries were caused during the assault and not at some other point in the evening. S.T. himself testified that it was upon his return that he saw that the Complainant had injuries to her face.

There was no evidence whatsoever that the Complainant had any injuries prior to the alleged attack. CONCLUSION [ 128 ] Given all of the above, I am satisfied the offence has been proven. The evidence establishes a violent and opportunistic assault by an Accused on the Complainant. I am satisfied beyond a reasonable doubt that all the elements of the offence of sexual assault causing bodily harm have been proven and find the Accused guilty as charged. _____________________________ Frances J. Knickle Justice