Her MAJESTY THE QUEEn applicant And: D.R. Respondent, 2019 NLSC 217

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R .v .D.R. , 2019 NLSC 217 Date : December 2, 2019 Docket : 201804G0232 Between: Her MAJESTY THE QUEEn applicant And: D.R. Respondent Before: Justice Daniel M. Boone Edited Transcript of Oral Reasons for Judgment Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: October 21, 22, 23 and 24, 2019 Date of Oral Judgment: December 2, 2019

Summary: The Accused was charged with one count under

section 271 and one count under

section 151 of the Criminal Code . The Court found the Accused guilty of the charge under

section 151 and stayed the charge under

section 271 pursuant to the Kienapple principle. Appearances: Lori-Lee M. St. Croix Appearing on behalf of the Crown Robby D. Ash Appearing on behalf of the Accused Authorities Cited:

CASES CONSIDERED: R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30; R. Kienapple, (SCC), [1974] S.C.J. No. 76, [1975] 1 S.C.R. 729 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 TEXTS CONSIDERED: David M. Paciocco, Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment, (2017) 22Can. Crim. L. Rev. 31 REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] The Accused is charged with one count of having committed a sexual assault on the complainant, A.R.P., between June 29,2014, and January 2015, contrary to

section 271 of the Criminal Code, R.S.C. 1985, c. C-46, and one count of sexual interferencebetween the same dates, contrary to

section 151 of the Criminal Code. Both charges arise out of the same event. [2] The essence of the charges is an allegation that the Accused fondled the complainant’s penis on two occasions while the twoshared a bed during an overnight visit to the home of a relative. [3] The only real contested issue that I have to decide is whether the Accused did what he is alleged to have done. I find that theCrown has proved beyond a reasonable doubt that he did commit the acts alleged and I will explain my reasons in this decision. [4] The Accused is the complainant’s maternal grandfather.

I will refer to the complainant as ARP; his mother as PR, theAccused as DR; the grandmother of the complainant, who is also the wife of the Accused, as MR; and her sister as JW. [5] The Court heard evidence from the complainant, three police officers, the complainant’s mother, his great aunt, and hisgrandmother and the Accused. [6] As a preliminary matter, I note that both the Crown and the Accused presented evidence and conducted cross-examinationconcerning two issues that I find not to be material issues. First, evidence was presented regarding the timing of ARP’s disclosure of theallegations.

The Criminal Code,

section 275 and previous cases, have established that neither delay in disclosure nor the immediacy ofdisclosure are probative of whether the alleged acts occurred. [7] Second, both Crown and defence questioned the witnesses regarding whether there was a change in the relationship betweenARP and DR following the alleged fondling.

Again, previous cases have made it clear that there is no uniform way in which victims ofsexual offences respond, and relationships between people are complicated and diverse. [8] However, I will have to discuss certain aspects of disclosure and the relationship between ARP and DR when I consider thecredibility of each of them. [9] ARP and his three sisters were living with DR and MR, their maternal grandparents, during the timeframe when the assaultallegedly occurred.

This living arrangement followed an intervention by Child, Youth and Family Services that initially resulted in thefour children being placed in foster care and later into the custody of their grandparents. PR lived in a different community from herparents during these alternate custody periods. Her parents frequently brought the children to visit her on weekends, and the wholefamily stayed with her. CROWN EVIDENCE The Complainant’s Great Aunt (JW) [10] The assault allegedly occurred at the home of JW. JW testified that she recalled only one overnight visit during the relevanttimeframe.

She could not recall the date of the visit but thought that it was late summer or fall. She recalled that on this occasion, DRand MR and all four of their grandchildren stayed overnight at her home. ARP and DR shared a spare bedroom in her home that had onedouble bed. She also recalled that she and her husband, together with MR and DR, spent time that evening socializing in her shed. She,her husband and DR were drinking beer that evening. She did not recall anything out of the ordinary or any sign of tension among any ofthe family that evening or the next morning.

She was up early the next morning but MR was up before her. The Complainant’s Grandmother (MR) [11] MR testified that on Thanksgiving weekend 2014, she, DR, ARP and his three sisters travelled from their home to Corner Brookto spend the weekend with PR (the complainant’s mother). On the way to Corner Brook they stayed over on Friday night with JW. During that night, ARP’s three sisters slept in JW’s daughter’s bedroom. Originally, MR and DR were intended to sleep together in aspare bedroom, but ARP asked if instead he could sleep in the room with DR.

[ 12 ] MR testified that she, JW and their husbands spent a significant portion of that Friday evening socializing in the shed. She did not drink, but the others were drinking beer. She could not recall how much the others drank. She and JW left their husbands in the shed and went inside where they chatted until they went to bed about 1:00 or 1:30 a.m. She observed through the open spare bedroom door that ARP was still awake and using his laptop and she told him to shut it down and go to sleep. MR went to sleep on the couch in the living room. [ 13 ] MR said she woke up the next morning as dawn was breaking.

As soon as she woke, she saw ARP sitting in the living room on his laptop and she asked him what he was doing up so early. ARP became upset and told her that DR had touched him. She did not recall any further detailed description, but, based on her recounting of her side of the ensuing conversation, she obviously understood that the touching had been sexual in nature. She says that she comforted ARP. She told him that DR probably thought it was her, and not ARP, in bed with him when the touching occurred.

She did not describe to ARP in any detail what she meant by that because, she testified, “how are you supposed to talk to a small youngster about sex?” She never spoke with ARP about this incident again. [ 14 ] MR testified that she spoke to DR about the touching reported to her by ARP. She could not recall whether this occurred that same day or when they returned home from Corner Brook after the weekend. The Complainant (ARP) [ 15 ] ARP, who is now fifteen, testified.

He could not recall the date of the incident beyond being certain that it occurred during the timeframe that he was living with his grandparents, which coincides with the time that the indictment alleges the offences occurred. He said that the incident occurred during an overnight visit to JW’s house on a trip to Corner Brook with his grandparents. He did not recall his sisters accompanying them on the trip. He and DR were to sleep in the spare bedroom, but he did not recall requesting this arrangement. The adults were in the shed and he watched a movie with his cousin.

He then spent some time on his laptop and went to bed. He was awake when DR came into the room. He then fell asleep, on his side facing the wall against which the bed abutted. He awoke in the night to find DR had his hand down ARP’s pajama pants. DR grabbed the complainant’s penis and started pulling on it. He never stopped for almost five minutes. ARP moved away as far as he could and rolled onto his stomach. DR then removed his hand and went to sleep, as did ARP. However, ARP woke again in the middle of the night to find DR again with his hand down his pants, grabbing his penis and pulling on it.

This time the incident lasted less than a minute until ARP got up and left the bedroom. He went to the living room and started using his laptop. He was confused by the incident. [ 16 ] ARP says that it was getting light when he went into the living room. About half an hour later MR came into the room and asked what he was doing awake. He started crying and told her that the Accused had touched him. He recalls that his grandmother started laughing and told him that DR had probably thought that it was her he was touching in the bed.

ARP felt that MR did not care about the revelation. [ 17 ] ARP testified that he never told anyone else about the incident for some time. However, he said that about a month after the incident, DR apologized to him for having touched him. He says that this occurred while the two were driving in Corner Brook in a Kia Sorento owned by his grandparents. DEFENCE EVIDENCE The Accused (DR) [ 18 ] DR testified. He recalled that during the timeframe when his grandchildren were living with him the family made only one trip to JW’s house and that was on the Friday of Thanksgiving weekend 2014.

At that time, he and MR were taking their grandchildren to Corner Brook to visit their mother. They stayed overnight at JW’s house on the way. During the evening, DR and MR spent time in the shed socializing with JW and her husband and others. He was drinking. He cannot recall exactly how much he drank. However, he said that he had at least half a dozen beer, perhaps more, and may also have had some drinks of liquor.

He conceded on cross-examination that he was “over a bit on the drinking.” He was in the shed until about 2:30 a.m. when he went inside, had a snack and then took four medications he was prescribed for a back condition: Baclofen, another muscle relaxant, Demerol and Amitriptyline. These medications generally caused him to sleep heavily. He conceded on cross-examination that these drugs exaggerated the effect that alcohol has on him. [ 19 ] DR testified that he understood that he and his wife were to sleep in the spare room but when he went in to bed, ARP was in that bed.

ARP was sitting up using his laptop, and the Accused asked him to turn it off so that they could go to sleep. ARP refused. DR says that he told the complainant that he would have to go to sleep in the living room because there was not enough room in the bed for the two of them. The complainant refused. The Accused says that he then “conked out” and slept through the night. He remembers nothing else of the night. He woke up just before noon. The others in the house were already awake.

He recalls no tension in the house that morning and no tension during the drive to Corner Brook. [ 20 ] The Accused denied that he touched the complainant in the manner alleged in the indictment. ANALYSIS [ 21 ] The Accused is charged with sexual interference contrary to

section 151 of the Criminal Code and sexual assault contrary to

section 271 of the Criminal Code . [ 22 ] I have determined that the Crown has succeeded in proving beyond a reasonable doubt that the Accused is guilty of the offence of sexual interference, and that the proceedings under the sexual assault charge ought to be stayed. My reasons follow. [ 23 ] The Crown has the onus to prove beyond a reasonable doubt the elements of the offence with which the Accused is charged. The standard of proof required of the Crown is much closer to absolute certainty than it is to probability ( R. v. Starr , 2000 SCC 40 ). In this case, the Crown must prove to that standard that the accused touched a person under the age of sixteen for a sexual purpose.

[24] The requirement for a criminal offence to be proven beyond a reasonable doubt is fundamental to our system of justice. Theauthorities direct how a Court ought to deal with reasonable doubt as applied to the issue of credibility in a case of conflicting accountsrelated to the essential elements of the offence charged. These cases are not to be resolved merely by choosing between the conflictingaccounts on the basis of which story is more believable. The recognized leading articulation of the appropriate process is from themajority decision of the Supreme Court of Canada in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, at paragraph 11:. 11 … First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [25] The W. (D.) formula has been the subject of considerable judicial and academic commentary. Prof. David M.

Paciocco inDoubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment, (2017) 22 Can. Crim. L. Rev. 31 gave the followingcommentary that I find helpful in approaching the application of the formula to this case: The W. (D.) framework is intended to assist criminal fact-finders in properly applying the reasonable doubt concept to issues ofcredibility. Its three rules, designed to instruct criminal fact-finders on what to do when they believe evidence, disbelieve it entirely, orare unsure whether to believe it, are imperfect.

Still, its underlying principles are indispensable in any situation where, in a criminal trial,the accuracy of testimony inconsistent with the guilt of the accused is at issue. Those principles must therefore be understood, andrespected. They provide:

(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder cannot decide whether thatevidence is true, there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [26] In applying the framework to the evidence, it is important to note that the use of the term “believe” in W. (D.) is intended toconvey that more than an assessment of honesty is required. I refer again to Prof.

Paccioco’s article, at p. 15: Although references to the W. (D.) framework elide the two under the heading “credibility,” it is helpful when actually evaluating“credibility” to bear in mind that there are, in fact, two distinct sources of inaccurate testimony, problems of “credibility” and of“reliability.” As indicated, when those terms are used precisely, as “terms of art,” testimony has “credibility” problems if the witness isintentionally offering, in whole or in part, entirely false, exaggerated, or minimized information. In effect, “credibility” addresseswhether the witness is lying.

In contrast, reliability is about honest mistakes. Evidence has “reliability” problems if an honest witness isinadvertently offering inaccurate information [27] It is also important to keep in mind that in considering the credibility of witnesses, a fact finder must approach the exercisewithout preconceptions, stereotypes, or any presumptions of truth and must also analyze the credibility of all witnesses with equalintensity. Application to this Case [28] I turn now to resolution and analysis of the evidence through the W. (D.) framework. [29] DR denied the allegation against him.

He was asked on direct whether he committed the act alleged and he responded that hedid not. That was the only evidence given by the Accused directly addressing the allegation in the indictment. However, he also saidthat he did not have any memory of any event from the time he went to sleep until he woke up nine hours later. The denial by theAccused really states the position that he does not remember the incident happening.

I make this observation not in respect of imposingan onus on the Accused to prove anything, but only in order to properly consider the credibility of his testimony. [30] On the night of the alleged acts, the Accused had at least a half dozen beer; there was a good possibility that he had more, and itwas possible that he also had drinks of liquor. He admitted that he was “over a bit on the drinking.” ARP testified that he observed DRstaggering when he came to bed.

Moreover, after having consumed that alcohol and before he went to bed, DR took four prescriptionmedications that, again by his own admission, exaggerated the effects of alcohol and also had the effect of deepening his ensuing sleep. He then, to use his own words, “conked out” and did not observe anything until he awoke nine hours later.

Although he did recount abrief interaction with the complainant that occurred before he went to sleep, this occurred immediately after he took his pills andtherefore before the medication had the reported effect on him and a considerable time before the first incident of touching is alleged to

have occurred. [31] I refer also to the evidence of the Accused’s wife, M.R., who testified that she told DR that ARP had reported to her that DR hadtouched him inappropriately. DR was asked about this at trial, and he said that he did not remember this conversation but conceded thatit had possibly occurred. I find that this concession on his part reflects on the credibility of his testimony in one of either two ways. It isnot plausible that a person who was confronted with such a suggestion would not remember it, unless he considered it to be insignificant.

If he considered it insignificant, then this supports my finding that the Accused’s memory of his conduct on the night in question is notreliable. [32] I therefore do not credit or believe the denial expressed by the Accused, which was the only evidence offered in defence to thecharge. His lack of memory of the night during which the offence allegedly occurred is an insufficient basis on which to acquit him as itdoes not raise a reasonable doubt as to his guilt. [33] Of course, the Accused does not have an onus to prove his innocence.

Consequently, I continue the analysis under the W. (D.)framework, assessing the credibility of the complainant and the evidence as a whole to determine whether the Crown has proved beyonda reasonable doubt that the acts with which the Accused is charged occurred. [34] ARP did not recall, or was mistaken about, certain circumstances on the periphery of the conduct he alleges on the part of theAccused. He could not recall the date or specific season when the offence allegedly occurred. He said that his sisters were not on thisovernight trip to JW’s house.

He said that it was always the plan that he and DR would stay in the bed together that night, but this wascontradicted by the adult witnesses who testified that the original plan was that DR and MR would sleep in that bed. ARP said that hisgrandmother was not in the living room when he got out of bed, but she said that she was asleep there and woke to find ARP sitting there. [35] These inconsistencies do not cause me concern about ARP’s credibility regarding the essential events. They relate to relativelyinsignificant matters on the periphery of the events.

Moreover, ARP was 11 years old at the time these events occurred. The authoritiesremind us that although the credibility of all witnesses must be carefully assessed, children do see and recall the world differently than doadults. As the Supreme Court of Canada has stated in R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30 at p. 54: While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does notmean that they have misconceived what happened to them and who did it. [36] ARP was certain that these events happened at JW’s home during the timeframe when he was in the custody of hisgrandparents. His grandparents both testified that the family made only one trip to JW’s house during the relevant time. ARP alsoremembered other events regarding the trip in a manner consistent with the other witnesses.

He recalled that the adults in the housespent the evening socializing and having drinks in the shed. The evidence of both grandparents and of JW was that on this trip the adultsspent the evening socializing with drinks in the shed. ARP recalled that he and DR slept together in a spare bedroom that was paintedpink. JW testified that during this particular timeframe the spare bedroom was painted pink. ARP recalled that the family packed up andleft JW’s on the day after the alleged offence.

The evidence of the adults was that the overnight trip lasted for one night only. [37] I do not consider ARP’s alleged disclosure to his grandmother as corroborative of his evidence regarding the events. Theevidence of the complainant is his testimony at trial and any prior statement by the complainant supporting that evidence is asuperfluous, self-confirming statement inadmissible to prove the truth of the allegation. This evidence of a complaint about theAccused’s conduct to MR at JW’s house is not admissible to establish that the Accused committed the acts alleged, and is not proof ofthose acts.

It is, however, admissible as a necessary part of the narrative. The evidence related to this statement to MR is relevant to alimited extent in determining the credibility of ARP. I accept the evidence of MR that ARP made this allegation to her on the Saturdaymorning of Thanksgiving weekend. She is still married to, and living with, the Accused and yet she corroborated this evidence of ARP. [38] I also find that ARP’s evidence that the Accused apologized to him shortly after this incident was consistent with otherevidence.

It was consistent with his having told his grandmother that the incident happened, and her then telling DR of this report. ARPalso said that this apology took place while in DR’s silver KIA Sorento. DR testified that he and MR purchased a silver KIA Sorento infall 2014. [39] The defence suggested that the credibility of ARP was suspect for two further reasons. [40] First, ARP was questioned by police in 2016 in respect of an investigation into another complaint against DR of sexualmisconduct against another person. At that time, he denied that DR had done anything inappropriate toward him.

Further, he was askedwhether he believed the other complainant, and he said that DR was not the type of person to engage in such behavior. ARP explainedthat he did not report the acts alleged in the charge that I am considering because he was scared. I accept that explanation. [41] Second, when he gave his statement to police in connection with the current charges, ARP told police that he had not slept in thesame bed as DR again following the night that DR allegedly touched him. However, he admitted on cross-examination that he had sleptin the same bed with DR on one occasion.

That was during a visit to DR’s home when the house was full and ARP and his sisters sleptin the shed with DR. ARP answered the concern raised about his credibility by stating that night was different as his sisters were in thesame room; I accept that explanation. Further, MR testified that on New Year’s Eve 2016, ARP and DR slept in the same bed when thewhole family had rented an apartment for the night. ARP admitted on cross-examination that this occurred, but he said that he must haveforgotten it when he spoke to police.

I do not find this contradiction sufficient to undermine his credibility regarding essential events. Itis plausible that a young teenager being questioned by police concerning allegations against his grandfather would, under such stress,forget this event. [42] Only the complainant and the Accused were present at the time of the alleged offence. The complainant gave a plausibleversion of these events. His evidence in respect of the surrounding circumstances was consistent with that of other Crown witnesses andeven with that of the Accused in most essential respects. I found him to be a credible witness.

Having considered the evidence as awhole, I find that the Crown has established beyond a reasonable doubt that DR fondled and pulled the penis of ARP on two separate

occasions in the early hours overnight of Saturday morning on the 2014 Thanksgiving weekend. [43] I find that the touching proven by the Crown was for a sexual purpose. The nature of the touching described by thecomplainant was such that no reasonable person could see it directed to any other purpose than the sexual gratification of the Accusedand the violation of the sexual integrity of the complainant. [44] The charge of sexual interference is a specific intent offence. Intoxication can be a defence to such a charge. The Accused didnot raise this defence.

I previously found that the combination of sleep and the Accused’s consumption of drugs and alcohol affected myassessment of his credibility. However, the evidence does not demonstrate that he was in such an advanced state of intoxication to leaveme in reasonable doubt as to the sexual purpose of the acts alleged. I note in that regard that although he had been drinking, the Accusedwas able to find the bedroom in which he was to sleep, undress and, according to his testimony, carry on a conversation with ARP priorto going to sleep.

I also note that the case law establishes that even an alcohol-induced blackout is not evidence that by itself raisesreasonable doubt about the sexual purpose of acts such as the Accused is charged with having committed. It is only one of thecircumstances to be considered. [45] The charge under

section 151 is of sexual interference with a person under the age of sixteen. ARP and PR both testified thatthe complainant was born on November 19, 2003. I find, therefore, that at the time of the alleged offences, the complainant was underthe age of sixteen. [46] I therefore find that the Crown has proved beyond a reasonable doubt that the Accused touched a person under the age ofsixteen years for a sexual purpose, and I find him guilty of the charge of sexual interference, contrary to

section 151(

a) of the CriminalCode. [47] The Crown and Defence agreed that I should consider the

section 151 charge and if I find the Accused guilty, which I have,then, as the

section 271 charge arises out of the same facts, I ought to apply the principle in R. Kienapple, (SCC), [1974]S.C.J. No. 76, [1975] 1 S.C.R. 729 and stay the

section 271 charge. I so order. _____________________________ Daniel M. Boone Justice