R. v. G.H., 2019 NLSC 197

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. G.H. , 2019 NLSC 197 Date : November 4, 2 019 Docket : 201801G5447 Her Majesty The Queen v. G.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identify the person described in this judgment as the complainant or a witness including the name of the accused, shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: October 22, 2019

Summary: The accused was convicted of two counts of sexual assault and one count of exposing his genitals to the complainant who was under 16 years of age. In one count of sexual assault the Crown failed to prove the aggravating factor of sexual intercourse and for the purposes of sentencing on a Gardiner application the evidence proven for the purpose of sentencing was that the accused touched E.H.’s breasts on one occasion outside of her clothing. On the allegation of genital exposure, the Crown proved that G.H. exposed his genitals to E.H. on several occasions. On the second count of sexual assault, the Crown proved the aggravating factor of sexual intercourse on four occasions.

Appearances: Shawn I. Patten Appearing on behalf of the Crown Rosellen Sullivan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368; R. v. Ferguson, 2008 SCC 6; R. v. Jesso, 2008NLTD 36; R. v. Gauthier, 1996 Carswell BC 1587, 78 B.C.A.C. 85; R. v. Landry, 2016 NSCA 53; R. v. Brown, (SCC),[1991] 2 S.C.R. 518; R. v. Dueck, 2011 SKCA 45 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT (Gardiner Application) Adams, J.: INTRODUCTION [1] On 3 October 2019, following a trial before a judge and jury, G.H. was found guilty of counts 2, 4 and 5 in a five countindictment. It is conceded by the Crown that the evidence in each of the counts is somewhat ambiguous in that the complainant, E.H.,testified to several incidents of sexual assault or in the case of count number 4 of exposure of G.H.’s genital organs occurring in the sametimeframe and locations.

The sexual assault allegations ranged from touching of the complainant’s breasts to sexual intercourse. [2] I am now called on to determine the facts to be relied on for the purpose of sentencing: a so called Gardiner application – sonamed after the case of R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368.

In that case, the Supreme Court of Canadadetermined that the burden of proof to establish an aggravating factor is the criminal burden of proof beyond a reasonable doubt (pages414 – 415). background [3] In the summer of 2016, E.H. laid a complaint against G.H., the common law partner of E.H.’s aunt, her mother’s sister, thatG.H. committed various sexual offences against her between 2013 and 2016 when she was between 10 and 13 years of age. Theseallegations led ultimately to G.H. being charged with five counts in a single indictment. It is useful for the purposes of this decision toset out the five counts.

Count 1 Between the 12th day of March 2013 and the 12th day of March 2014, at or near Roddickton, Newfoundland and Labrador, did commit asexual assault on E.H., contrary to

section 271(

a) of the Criminal Code; Count 2 Between the 1st day of December 2014 and the 15th day of September 2016, at or near Paradise, Newfoundland and Labrador, didcommit a sexual assault on E.H., contrary to

section 271(

a) of the Criminal Code. Count 3 Between the 1st day of January 2016 and the 31st day of August 2016, at or near St. John’s, Newfoundland and Labrador, did commit asexual assault on E.H., contrary to

section 271(

a) of the Criminal Code; Count 4

Between the 1 st day of May 2016 and the 31 st day of August 2016, at or near St. John’s, Newfoundland and Labrador, did for a sexual purpose expose his genital organs to E.H., a person under the age of sixteen (16) years, contrary to section 173(2) (

a) of the Criminal Code ; Count 5 Between the 1 st day of June 2016 and the 31 st day of August 2016, at or near Arnold’s Cove, Newfoundland and Labrador, did commit a sexual assault on E.H., contrary to

section 271 (

a) of the Criminal Code ; [ 4 ] G.H. pleaded not guilty on all counts. [ 5 ] At the conclusion of the trial, the jury found G.H. not guilty of counts 1 and 3 and guilty of counts 2, 4 and 5. The only evidence was the testimony of the complainant, E.H. who was 16.5 years of age at the time of the trial. the law [ 6 ] The Criminal Code , R.S.C. 1985, c. C-46 sets out in

section 724 the procedure to be followed for fact finding in the determination of an appropriate sentence. It states: 724

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [ 7 ] This

section was considered in R. v. Ferguson , 2008 SCC 6 . The Court stated at paragraphs 16 – 18: 16. This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict.

This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand. 17. Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied

factual implications of the jury's verdict": R. v. Brown, (SCC), [1991] 2 S.C.R. 518 (S.C.C.), p. 523. The sentencingjudge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)),and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.). 18.

Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow thelogical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994),1994 ABCA 402 , 162 A.R. 117 (Alta. C.A.). In so doing, the sentencing judge "may find any other relevant fact that wasdisclosed by evidence at the trial to be proven" (s. 724(2)(b)).

To rely upon an aggravating fact or previous conviction, the sentencingjudge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, thesentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(

d) and 724(3)(e); see also R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368 (S.C.C.); R. v. Lawrence (1987), (ON SC), 58 C.R. (3d) 71 (Ont. H.C.)). It follows fromthe purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposedin the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal withthose issues. [8] In R. v.

Jesso, 2008 NLTD 36 at paragraph 3 (the case was decided shortly before Ferguson was handed down by the SupremeCourt of Canada), Hoegg, J. (as she then was) referring to R. v. Gauthier, 1996 Carswell BC 1587, 78 B.C.A.C. 85, held that, oncehaving been found guilty by the jury, the accused ought not to be permitted to lead evidence surrounding the seriousness of the offence inorder to minimize the impact of the verdict on sentencing. Neither can the judge speculate on the jury’s reasoning in coming to itsdecision. All the evidence surrounding the facts of the case should have been presented at the trial.

Hoegg, J. also held that the trialjudge is not required to give the offender the benefit of the most favourable view of the evidence. [9] In R. v. Landry, 2016 NSCA 53, the Nova Scotia Court of Appeal, drawing on the law as established in the leading case of R.v. Brown, (SCC), [1991] 2 S.C.R. 518 and Ferguson, supra, offered at paragraph 49 a useful template for a judge tofollow in this type of application: 49. I would distill the rules for a court to follow as: 1. The sentencing judge shall accept as proven all facts, express or implied, that are essential for the jury's guilty verdict. 2.

When the jury finding is ambiguous, the sentencing judge should not attempt to follow the logic of the jury. Instead, he or shemust make their own independent determination as to the relevant facts. 3. The sentencing judge should only find those facts necessary to permit the proper sentence to be imposed. 4. The sentencing judge may not find as fact things that were rejected by the jury's verdict. 5.

For any aggravating fact, the sentencing judge must be satisfied that the evidence is sufficiently cogent to enable her to find itproved beyond a reasonable doubt. [10] This is the law I will apply. positions of the parties The Crown [11] The Crown acknowledges that the evidence is ambiguous and submitted that I am not obliged to find an aggravating factorbeyond the evidence necessary to ground the essential elements of the offence, i.e., in respect of sexual assault, touching for a sexualpurpose.

In respect of count 2, sexual assault, counsel submitted the evidence is ambiguous and I must determine whether the Crownhas proved an aggravating factor beyond a reasonable doubt. [12] In respect of count 5, sexual assault, the Crown submitted that the ambiguities are fewer and relate to the location of theassaults and the number of them, which are not essential elements. He submitted, however, that regardless of location, all the incidentsreferred to in count 5 resulted in sexual intercourse which is an aggravating factor.

Crown submitted it would be an error to parse theindividual touches in each incident leading ultimately to intercourse. They were, he said, all part of a single incident which culminated insexual intercourse. [13] In respect of count 4, while the evidence is somewhat ambiguous, the ambiguity relates principally to the location at which theexposure took place which, submitted Crown counsel, is not an essential element of the offence.

G.H. [ 14 ] Counsel for G.H. submitted that there were major inconsistencies in E.H.’s testimony which undermine her credibility in respect of all counts. As such, she submitted that I should conclude on the counts alleging sexual assault that the Crown has not proved any facts beyond the essential elements of the offences, i.e., touching for a sexual purpose and, specifically, that the Crown has not proved beyond a reasonable doubt that sexual intercourse took place in any count.

She submitted that in each count alleging sexual assault there is evidence on which the jury could have relied for its verdict short of sexual intercourse. She submitted that E.H.’s lack of credibility raises a reasonable doubt which must be resolved in favour of G.H. [ 15 ] Both counsel submitted that I must review the evidence of E.H.’s testimony to determine the facts. issues 1. What are the facts in each count to be relied on for the purpose of sentencing? 2.

Has the Crown proven beyond a reasonable doubt any aggravating factors in either count? decision Count No. 2 [ 16 ] The evidence in this count is ambiguous. The only evidence is that of E.H. It ranged from G.H. having touched her breasts in the smoke room in the basement of his house to sexual intercourse with her in the trailer parked next to his house. There were numerous inconsistencies throughout E.H.’s testimony on this count. [ 17 ] E.H. gave three statements to the police, she testified at the Preliminary Inquiry and she testified at trial.

She gave three different versions at different times of what happened to her in the smoke room in the basement of G.H.’s house in Paradise. In her testimony in this trial, E.H. said that G.H. tried to take her pants down but nothing happened because L. (G.H.’s partner and E.H.’s aunt) called out to him and he left the room. She also stated that G.H. touched her breasts. It was unclear if it was outside or inside her clothing.

However, since E.H. did not say that G.H. undressed her or had her undress herself, I infer that the touching was outside her clothing. [ 18 ] However, in her March 2017 statement to the police, E.H. said that G.H. pulled her pants down, rubbed her vagina with his hand and masturbated while doing so. She also said he rubbed his penis against her (a statement from which she later resiled). [ 19 ] In her September 16 statement, E.H. said that G.H. put his “bird” near her upper legs. In her October 16 statement, E.H. told the police that G.H. actually had sex with her in the smoke room.

At the beginning of her cross-examination, E.H. agreed that when she referred to “sex”, she meant G.H. put his penis in her vagina. E.H. also testified that G.H. sexually assaulted her in the smoke room several times; whereas at the Preliminary Inquiry she testified that there was only one instance in the smoke room. [ 20 ] These are just some of the inconsistencies in G.H.’s testimony respecting the incidents in the smoke room. [ 21 ] E.H. also testified that G.H. had sex with her in the trailer parked a few feet from his house. G.H., L. and E.H. were preparing the trailer for the camping season.

This involved each of them bringing baskets of such things as towels from the house out to the trailer. E.H. said that evening, after bringing out a basket of towels and while L. was still in the house next door preparing things to be taken to the trailer and who could have walked in to the trailer at any time, G.H. locked the door to the trailer, closed the blinds and had sex with her. [ 22 ] E.H. was also inconsistent in her description of how the sexual assault in the trailer took place. At one time, she testified that G.H. took her pants off and laid them on the side of the bed by her.

At another time, she testified that he had just taken them off one leg. E.H. testified that all of the assaults in 2016 took place from late June to late July of that year. E.H. said the sex in the trailer by G.H.’s house took place around the end of June, just as school was getting out for the summer. However, in her October 16 statement to the police, E.H. said that the trailer had been taken to Jack’s Pond in early May. [ 23 ] E.H.’s testimony is also tainted by her having discussed it with family members. She discussed it with her mother, her father and at least one cousin and possibly an aunt.

E.H. developed notes in advance of giving her first two statements to the police. In the first one, her cousin actually wrote the notes. E.H.’s mother helped her remember the timing of the assaults in the trailer next to G.H.’s house. She did not remember the incidents of sexual intercourse at all in her first statement in September 2016. These were not mentioned until her second statement in October 2016.

She said that while on a family shopping trip she suddenly remembered all these incidents of sexual assault and asked to give a second statement to the police. [ 24 ] At times during her testimony, E.H. said she wasn’t actually recalling the incidents she was testifying about but was trying to remember what she had said in her statements. In all, I find that E.H.’s testimony is unreliable to ground the aggravating factor of sexual intercourse in count 2.

Sexual intercourse must be proved beyond a reasonable doubt and in this count the Crown has failed to do so based on the unreliability of E.H.’s testimony. [ 25 ] E.H.’s testimony contained numerous inconsistencies with other statements she made, including her sworn testimony at the

Preliminary Inquiry. As well, there was evidence that her testimony may have been tainted by discussions with others and may not be her own recollections. As well, the disclosures against G.H. came about during a troubled time at home. E.H.’s father had disowned her and she was in trouble over playing inappropriate games on her phone that G.H. had given her. [ 26 ] The allegations in the camper were all one incident and cannot be broken down into separate incidents culminating in sexual intercourse. The Crown has not proved beyond a reasonable doubt that the incident in the trailer occurred.

For the same reasons, I find that the Crown has not proved beyond a reasonable doubt that sexual intercourse occurred in Paradise in G.H’s truck. [ 27 ] In conclusion on count 2, I find the following facts on a balance of probabilities: G.H. touched E.H.’s breasts over her clothes in the smoke room of his house in Paradise, Newfoundland and Labrador in the relevant time on one occasion. Count No. 4 [ 28 ] There are a number of inconsistencies in E.H.’s testimony on this count but the jury has convicted him. I must now determine what facts have been proven on a balance of probabilities.

I find that at the relevant time G.H. exposed his genitals to E.H. on a number of occasions, including in his truck at various locations while he masturbated, in the smoke room in his house and in pictures and videos sent to E.H. by G.H. via Snapchat. The location of where the exposures took place is not an essential element which needs to be proven. Count No. 5 [ 29 ] This count alleged sexual assault at or near Arnold’s Cove in the Province of Newfoundland and Labrador.

It included the incidents at Jack’s Pond where E.H. said G.H. took her on an ATV and on a “side by side” (an ATV with 2 seats located side by side rather than one behind the other) to a spot off the train track across a river and had sexual intercourse with her. It also includes an incident near the highway close to Arnold’s Cove where E.H. said G.H. had sexual intercourse with her. [ 30 ] There are far fewer ambiguities in her testimony on this count. E.H. described in considerable detail several incidents where G.H. took her on the ATV and the side by side and had sex with her.

She specifically said she remembered these incidents and that G.H. put his penis in her vagina on each occasion. She did not say that other forms of sexual assault took place, such as the touching of her breasts. And just as the incidents in the trailer cannot be parsed into separate individual incidents leading ultimately to sexual intercourse, neither can the incidents referred to in count number 5 be so parsed.

E.H. was not asked and did not give any details in her testimony as to how her clothes were removed or any events leading up to the intercourse except that he laid her down on the ATV and had sex with her. She said in respect of at least one occasion G.H. said nothing during the sexual intercourse and she said nothing to him. [ 31 ] In R. v. Dueck , 2011 SKCA 45 , the accused was charged with sexual assault. The complainant gave a detailed description of the events which led to the sexual intercourse (see paragraphs 13 to 14).

On sentencing, the accused argued that the description the complainant gave amounted to several instances of touching or contact short of intercourse that could have directly been seen as sexual in nature. He referred to the accused forcing the complainant down on the seat of his car, grabbing her, taking off her tights and underwear, getting on top of her, applying “pressure” as he entered her vagina and his having positioned the complainant’s legs toward the roof of the car. [ 32 ] The trial judge (upheld by the Court of Appeal) rejected this argument.

The Court of Appeal concluded at paragraph 78 that those independent touchings were no more than “discrete pieces of what were, in fact, seamless larger events described by the complainant as involving sexual intercourse.” The Court held that the incident could not be parsed in that way. [ 33 ] That is also the case here. In fact, the case is stronger in the matter at bar as there is no evidence of any discrete touchings leading to sexual intercourse on the evidence in count number 5.

E.H. simply testified that on these occasions at or near Jack’s Pond and Arnold’s Cove, G.H. had sex with her, which she clarified as being G.H. putting his penis in her vagina. It would be pure speculation to conclude that there were any preliminary touchings which might have amounted to sexual assault. [ 34 ] Counsel for G. H. submitted that on the basis of a statement made by E.H. in cross-examination that “something happened every time they were together”, or words to that effect, the jury could have convicted on count number 5 for something less than sexual intercourse.

In my view, in the circumstances of this case, that would be an impermissible attempt on my part to get into the minds of the jurors. [ 35 ] Counsel submitted that in my own assessment of the facts, which includes E.H.’s lack of credibility, I can conclude that, based on the above statement of E.H., that that statement can amount to the elements of sexual assault in the context of this case. I disagree. [ 36 ] The statement is far too vague to constitute the elements of sexual assault, even when considering E.H.’s statement that sometimes when she said G.

H. had sex with her it meant something less than intercourse. While it is true that that is what E.H. said, it was not said specifically about the allegations in count number 5. In any event, E.H. was direct in her testimony that in respect of the allegations at Jack’s Pond and by the highway near Arnold’s Cove, G.H. put his penis in her vagina.

There was no other evidence. [ 37 ] I am satisfied that the jury believed E.H.’s testimony respecting the incidents at Jack’s Pond and Arnold’s Cove as there was no other evidence before them, despite any reservations they may have had about her credibility generally or in respect of other counts. They were entitled to believe her on this count. By necessary implication from the jury’s verdict, they believed that sexual intercourse occurred on these occasions as this was the only evidence before them. I would be denying their verdict to find otherwise.

It would be speculation on my part to attempt to parse the details of how the sexual assaults may have occurred. In the cases referred to by counsel for G.H. where the court was able to conclude that something less than intercourse took place, there was ample evidence of the discrete events leading up to the actual sexual intercourse. Those cases are distinguishable on that ground as that is not the case here. [ 38 ] I therefore find that the Crown has proved beyond a reasonable doubt that G.H. had sexual intercourse with E.H. on at least four occasions at or near Arnold’s Cove as referred to in count number 5.

This was the only evidence of sexual assault as referred to in count

number 5 and in respect of which the jury found G.H. guilty. As I must, I accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty on that count. conclusion [ 39 ] The jury found G.H. guilty of sexual assault on count number 2. The evidence ranged from the touching of E.H.’s breasts outside of her clothing to full sexual intercourse in several locations.

Due to numerous inconsistencies in E.H’s evidence on this count, the Crown failed to prove beyond a reasonable doubt that the aggravating factor of sexual intercourse occurred. [ 40 ] For the purposes of sentencing on count 2, the facts proven on a balance of probabilities are that G.H. touched E.H.’s breasts outside of her clothing in the basement smoke room of his house in Paradise on one occasion. [ 41 ] On count number 4, the Crown has proven on a balance of probabilities that G.H. exposed his genitals to E.H. on a number of occasions in his truck at various locations while masturbating, in the smoke room in the basement of his house and in pictures and videos sent to E.H. by G.H. via Snapchat. [ 42 ] On count number 5, the Crown has proven beyond a reasonable doubt that G.H. committed sexual assault on E.H. by having sexual intercourse with her on four occasions at or near Arnold’s Cove. _____________________________ James P.

Adams Justice