R. v. F, 2021 NLSC 152

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. F . (B.) , 2021 NLSC 152 Date : November 18, 2021 Docket : 201701G7572 Her Majesty The Queen v. F. (B.) Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code and subsection 110(1) of the Youth Criminal Justice Act , information that may identify the person described in this judgment as the accused, complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

Before: Justice Vikas Khaladkar Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: October 18-22, 2021 Date of Oral Judgment: November 18, 2021

Summary:

The Accused was acquitted of committing a sexual assault pursuant to

section 271(

b) and a common assault pursuant to

section 266 (

b) of the Criminal Code . The evidence of identity led by the Crown was insufficient to establish identity beyond a reasonable doubt. The evidence of the Complainant that the alleged offence took place in the summer of 2014 was not accepted. Rather, the alleged offence most likely occurred, if it occurred at all, during the summer of 2013. At that time the Accused would have been under the age of 18 years and, therefore, the provisions of the Youth Criminal Justice Act apply .

The timing of the alleged offence is, therefore, procedurally significant to the extent that this Court must use its Youth Court jurisdiction upon finding that the Accused was a young person at the time of the commission of the alleged offence. Appearances: Stephanie T. Roberts Appearing on behalf of the Crown Rosellen Sullivan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Starr , 2000 SCC 40 ST ATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Canada Evidence Act , R.S.C. 1985, c.

C-5 ; Youth Criminal Justice Act , S.C. 2002, c.1 REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] The Accused stands charged that he did, between June 1, 2014 and September 1, 2014 commit a sexual assault on C.R. and, during the same period of time, that he committed an assault on the same Complainant. I will refer to C.R. in this decision as “C.R.” or “the Complainant”. The charges relate to an incident that allegedly took place in the home of the Accused in the town of Conception Bay North, in the Province of Newfoundland and Labrador. [ 2 ] Cst.

Walter Pynn, a 36-year member of the Royal Canadian Mounted Police (“RCMP”), who was stationed in the Harbour Grace detachment at the time of the alleged offence, was the Crown’s first witness. [ 3 ] Cst. Pynn testified that he received a call from C.R.’s parents on November 15, 2016 indicating that their son had been sexually assaulted. However, there were some issues with the Complainant on that day that required a hospital visit, and Cst. Pynn was asked to hold off investigating until later. He met with C.R. and his parents on November 16, 2016 at their house.

He interviewed C.R. at that time but made no note of it in his police notebook and he did not record the interview. He then arranged for C.R. and his parents to attend at the Harbour Grace detachment, where he obtained a statement from C.R. [ 4 ] In cross-examination Cst. Pynn testified that he had taken several courses, through his employment, concerning the taking of statements from young persons. He could not recall the date when he took the course or the name of the course. He indicated that he was taught that the interviewer was to make the child comfortable and not to dominate during the interview.

The child was to be allowed to speak. Cst. Pynn noted that C.R. was not a child, but a young adult. [ 5 ] Cst. Pynn acknowledged that the interviewer should not ask leading questions of a child witness. He acknowledged that the child’s story was the most important information that an investigator was likely to receive. [ 6 ] Despite that acknowledgment, defence counsel took Cst. Pynn through a series of interactions with C.R., through the course of C.R.’s statement that can only be described as highly leading questions that suggested answers to a youthful witness.

The leading questions concerned such matters as whether the assailant said anything to C.R., what the assailant did to wake up C.R., how the assailant was involved in removing C.R.’s clothing, what portions of C.R.’s body the assailant touched, whether the assailant held C.R. down, the actual nature of the sexual assault, the timing of the sexual assault and the identification of the assailant by voice and sight even though C.R. indicated that he couldn’t tell identity from the voice and had never seen the assailant’s face. [ 7 ] Cst.

Pynn justified his questioning technique on the basis that the Complainant was shameful and reluctant to give information

voluntarily. Therefore, Cst. Pynn felt it appropriate to question the Complainant to determine the nature of the alleged sexual assault. [ 8 ] What damage the employment of this interviewing technique might have caused is difficult to ascertain. Officers should be careful, when conducting interviews, to let the interviewee tell the whole story before engaging in any questioning. And, if it is necessary to ask questions because of the interviewee’s reluctance to divulge facts, to do so in a manner that does not suggest the answers that the officer wishes to hear.

The possibility, in this case, that the Complainant’s evidence was potentially compromised and contaminated is difficult to ignore. EVIDENCE OF C.R. [ 9 ] C.R. testified. He was born in 2002 and, between 2011 and 2014, was friends with the Accused’s younger brother B.T. During that period of time, he was also acquainted with the Accused. [ 10 ] C.R. stated that he was a regular visitor at B.T.’s house. He indicated that during summer holidays in 2014, probably in late June or July, he had a sleepover at B.T.’s house.

He was sleeping in B.T.’s sister’s room by himself because he said that he wasn’t feeling well as a result of a flu or a cold. While asleep he was assailed. He was sleeping on his back. His assailant flipped him over by grabbing his leg with his right hand. He pushed C.R.’s face into the pillow and held it there. C.R.’s pyjamas were removed to his ankles and, then, the assailant sexually assaulted him by penetrating C.R.’s anus with his penis. [ 11 ] C.R. said that the room had no lighting and that there were no lights outside. However, he said moonlight was coming into the room through the window.

He indicated that the moon was really bright. He said that he got a glimpse of the figure that grabbed him before his face was pushed into the pillow. [ 12 ] When his assailant had finished he put on his jeans and told C.R. not to tell anyone. He said that no one would believe C.R. and, in any event, he would deny that anything had happened. The assailant then left the room. [ 13 ] C.R. testified that at the time of the sexual assault four of the children, including the Accused, were home.

He was not sure whether or not the Accused’s parents were home. [ 14 ] C.R. testified that he identified the Accused that night by his figure and his voice. He said that the Accused was the only person in the house who would look that way and have the same voice as his assailant did. [ 15 ] At the conclusion of C.R.’s direct evidence, Ms. Sullivan made an application pursuant to

section 278.92(2) (

b) of the Criminal Code , R.S.C. 1985, c. C-46 to allow the use of documentary evidence that had been previously obtained by the Accused pursuant to various production Orders.

Section 278.92(1) (

a) and (2) (

b) of the Criminal Code state as follows: 278.92

(1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (

a) an offence under

section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or … Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, … (b) . . . that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [ 16 ] The Courtroom was cleared of the public. C.R. was then advised of his right to be represented by counsel for the purposes of the hearing to determine whether the records in question should be admitted into evidence.

The matter was adjourned until the following day in order to afford him time to consult with counsel and determine whether he wished to be represented at the hearing and make submissions thereat. [ 17 ] On the following morning we commenced the

section 278.92(2) hearing in camera in accordance with sections 278.93 and 278.94 of the Criminal Code . C.R. was represented by counsel but did not personally appear.

[ 18 ] I determined, pursuant to

section 278.93(4) that the Application had been made in accordance with

section 278.93(2), a copy had been provided to the prosecutor in February, 2021 and filed with the Court. [ 19 ] I heard from counsel for C.R., the Applicant and the Crown. I determined that the evidence was admissible under

section 278.92(2) of the Criminal Code for the following reasons, which I delivered from the Bench: a. The documentary evidence is relevant to several issues at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. b. It is necessary, in the interests of justice, that the Accused have the ability to rely upon the documents in his possession in order to make full answer and defence. c.

While society has an interest in encouraging the reporting of sexual assault offences, society has a paramount interest in ensuring that persons charged with a sexual assault offence have the ability to defend themselves. The documents in question potentially impact upon the credibility and reliability of the Complainant’s testimony. d. While society has an interest in encouraging complainants in sexual offences to obtain treatment, that factor does not weigh heavily in this case since the Complainant has availed of services to assist him with a number of problems that he has experienced. e.

There is a reasonable prospect that the documentary evidence will assist the Court in arriving at a just determination in this case. f. There is no need in this case to remove from the fact-finding process any discriminatory belief. g. The potential prejudice to the Complainant’s personal dignity and right of privacy can be mitigated by declaring that the records be sealed and not be made available to any person without an Order of the Court. And I so ordered. h.

With respect to t he right of the Complainant and of every individual to personal security and to the full protection and benefit of the law, counsel for C.R. indicated that the Accused is entitled, in regard to this factor, to a fair trial but not a perfect trial. He argued that there is a clear difference between disclosure and admitting the records into evidence. He stressed that such an incursion should only be undertaken in the most important scenarios.

I held that the sealing of the documentation after its use at trial would safeguard the interests of C.R. while, at the same time, affording the Accused the ability to make full answer and defence. [ 20 ] I allowed defence counsel to tender the documentation as exhibits subject to the exhibits being sealed after the conclusion of evidence at the trial.

Defence counsel was permitted to cross-examine C.R. with respect to those portions of the documentation that pertained to him and in which he had provided information to the various service providers. [ 21 ] Defense counsel was permitted to cross-examine C.R. with respect to three topics concerning the admitted business records: substance abuse, C.R.’s mental health and fabrication. [ 22 ] C.R. was then cross-examined. He described B.F.’s house as having a concrete step at the front door.

He described the interior layout of the house. [ 23 ] C.R. acknowledged that photographs put to him by defence counsel (Exhibits CR1 and CR2), of the interior of the house, coincided with his recollection of the interior of the house on the night of the alleged sexual and common assault. [ 24 ] Photograph CR3 depicted a deck on the front of the house. C.R. had indicated that the house had a concrete step and no front deck.

This factor becomes material concerning the timing of the alleged offence and will be discussed later. [ 25 ] C.R. indicated that the Accused, his two brothers and his sister were home at the time of the alleged sexual assault. He told Cst. Pynn, in his statement, that the siblings were not home. [ 26 ] C.R. testified, in cross-examination that he provided a further written statement to Cst. Pynn in December, 2016 of his own accord for the purpose of augmenting what he had told Cst. Pynn earlier. He said that he remembered more details after talking to other people such as his therapist, parents and friends.

This statement caused me some concern because it raises the specter of potential contamination of the witness’ memory by third parties. One has to wonder, in relation to the Complainant’s evidence, which memories are his alone and which memories have been created as a result of the power of third party suggestion. [ 27 ] For example, in the December statement C.R. indicated that the Accused started rubbing his leg before grabbing him and flipping him over. On the stand he denied that there was any rubbing of the leg in advance of grabbing him and flipping him over. [ 28 ] There were other inconsistencies.

C.R. told Cst. Pynn that the Accused had attempted to talk to him during the assault. On the stand C.R. said that this must have been a mistake. There was no conversation until the sexual assault was complete – at which point he said he was told by the perpetrator not to tell anyone. [ 29 ] In his statement to Cst. Pynn, C.R. said that he saw the Accused face to face. However, in cross-examination C.R. indicated that he never got to see the assailant’s face.

He testified that he could not tell that the assailant was the Accused by recognition of his voice, he could only tell by his figure – and this was based on C.R.’s deduction that the Accused was the only one in the house big enough. [ 30 ] C.R. was cross examined regarding the various entries that doctors and others had made concerning him and, in particular, in relation to drug abuse, his mental health and fabrication of stories. He had very poor recollection of those interactions. He indicated that he was in a bad mental state and intoxicated.

He stated that he dissociated a lot and was unsure about what he was saying. He admitted to abusing drugs but indicated that he had not begun to do so at the time of the alleged sexual assault. EVIDENCE OF W.N.

[ 31 ] C.R.’s mother testified. I will refer to her in this decision as “W.N.” or “the Mother” in order to safeguard C.R.’s anonymity. [ 32 ] The Mother indicated that she knew the Accused’s family, but not really well. They had a common interest in reptiles. They attended a Firemen’s ball with the Accused’s parents on one occasion. She indicated that C.R. frequently had sleepovers at their house – she indicated perhaps a dozen times or so. [ 33 ] The Mother indicated that C.R. disclosed the sexual assault to them on November 15, 2016.

She indicated that he was displaying some troublesome behaviour and she asked him in a text what was going on. When he got home from school they talked about it and called the RCMP. She indicates that she knew not to ask too much for fear of tainting his evidence. C.R.’s mother is a retired child protection social worker. [ 34 ] The Mother indicated, in cross-examination, that C.R. was acting out in 2016. His troublesome behaviour consisted of lying, stealing, acting out, using marijuana and other illicit substances. He was entered into the Hope Valley treatment program on account of drug abuse.

He was suffering from auditory and visual hallucinations – behaviours that the Mother had not witnessed prior to 2016. [ 35 ] She indicated that C.R.’s behaviour changed after the summer of 2016. She stated that she perceived that C.R. lied a lot – that he elaborated stories, and his role in them, to make stories more interesting. She recalled that one other of C.R.’s cohorts had reported a sexual assault in the summer of 2016. She indicated that C.R. would sometimes tell a story as if it had happened to him when, in fact, it had happened to someone else. [ 36 ] That ended the case for the Crown.

At the conclusion of the Crown’s case defence counsel made an application to have C.R.’s medical and other records admitted for the truth of their contents pursuant to

section 30 of the Canada Evidence Act , R.S.C. 1985, c. C-5 . admission of business records [ 37 ] Section 30(6) of the Canada Evidence Act states as follows: Court may examine record and hear evidence

(6) For the purpose of determining whether any provision of this

section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record. [ 38 ] Notice was provided to the Crown by the defence in accordance with the section.

The records admitted into evidence consisted of notes of various health care professionals related to treatment received by C.R. [ 39 ] Defence took the position that the records could be admitted for the truth of their contents – being business records that were made in the ordinary course of dealing with C.R. [ 40 ] Crown took the position that C.R. could not remember the things mentioned in the records. He was not inconsistent with respect to the matters contained therein, he just could not recall.

The Crown had serious concerns about the Court’s use of the records for probative purposes. [ 41 ] Insofar as the records contain personal medical information concerning C.R. in which he has a high expectation of privacy, I ordered that the records be admitted into evidence but be sealed from the public. [ 42 ] I have not accepted the documents tendered on behalf of the defence for the truth of their entire contents.

I have done so only where there was either acknowledgment from C.R. that what was related by its creator was correct or, alternatively, that the information was corroborated by the viva voce testimony of C.R.’s mother – who attended some of the sessions with the creators of the business records. [ 43 ] Court then heard from three defence witnesses. THE EVIDENCE OF B.T. [ 44 ] B.T., a brother of the Accused, testified. He indicated that C.R. slept over at their house on a number of occasions in 2013.

He identified the location of various bedrooms in their house from photographs that were identified by him and tendered into evidence. He indicated that C.R. would never have slept by himself in his sister’s room. His reason for this conclusion was that H, the sister, was always home. He indicated that all of the children, including guests, would go to bed at the same time. He could not recall any occasion when C.R. had been sick at their house.

He indicated that had that happened, C.R. would have been taken home. [ 45 ] B.T. indicated that C.R. had slept over at their house a handful of times – perhaps five times at the most. [ 46 ] He indicated that the only year that C.R. slept over at their house was in the calendar year 2013. He testified that the house was renovated in 2014/2015. Their family still owns the house. He stated that if there were any sleepovers in 2014, they would have been at C.R.’s residence, but not at the Accused’s residence.

He testified that the interior layout of the bedrooms and bathroom in the house did not change as a result of the renovations. [ 47 ] Also living in the house in 2013, besides the children’s parents, were his siblings T.F., the Accused, C.T., J.T. and H.T. T.F. was the oldest of the siblings.

[ 48 ] B.T. indicated that it was rare for both parents to leave the house at the same time. It happened when they went out to buy groceries and for work purposes. His mother worked shift work at Walmart and his father worked for the town as a heavy equipment operator. His father was also a volunteer fire fighter. He would work nights during the winter clearing snow and, otherwise, would occasionally get called out for emergencies such as fires.

Ordinarily, however, his father worked during the days. [ 49 ] B.T. testified that it was not possible that his dad was called out while his mother was at work. [ 50 ] B.T. did not recall any occasion when C.R. went to bed at a different time than the rest of the children. He indicated that he, J.T. and C.T. had bunkbeds in their bedroom and, when C.R. slept over, he would sleep on a mattress on the floor. THE EVIDENCE OF H.T. [ 51 ] H.T. also testified. She identified the doors leading to various rooms in the photographs that had been tendered into evidence.

She indicated that she sometimes shared her room with her grandmother when her grandmother was visiting. Otherwise, she indicated that she never shared her room with anyone. She stated that C.R. never stayed in her room. [ 52 ] H.T. indicated that she was between the ages of five and seven at the time that C.R. would have been a visitor at her house. She said that during that time and, before she was 12 years of age, she did not sleep over at anyone else’s house, such as her grandmother’s, because she was afraid to sleep over before that age. THE EVIDENCE OF S.T. [ 53 ] The Accused’s father, S.T., testified.

He indicated that the Accused was born on […], 1995. The family has lived in Conception Bay North since 2004 or 2005. [ 54 ] S.T. described the construction of the interior of his house. In particular, he noted that the doors to each of the bedrooms and bathroom are hollow panel wood doors. The walls to each of the bedrooms are not insulated. They are covered in drywall.

He indicated that you can hear people that are occupying rooms other than the one you are in - such as kids watching television or fighting. [ 55 ] S.T. indicated that there is no exterior lighting on the back of the house – H.T.’s room faces out the back of the house. He stated that the main entry door of the house is on the side of the house. C.R. had also indicated that the main entry to the house was on the side of the house. S.T. indicated that they renovated the house in 2014 and, in the end of June of that year, put a patio on the front of the house - where the front door is located.

C.R. testified that there was no patio on the front of the house when the alleged sexual assault occurred. C.R. said that the front door had a concrete step. In July month they also renovated the back of the house and, in September of 2014 had completed the entire exterior of the house. [ 56 ] S.T. did not remember C.R. sleeping over at their house while it was being renovated.

He stated that while C.R. and B.T. were friends between 2011 and 2014, C.R. slept over at their house between 2011 and 2013. [ 57 ] The year 2013 was significant to S.T. because, in that year, he said that he had to make a choice with respect to continuing ties with C.R.’s parents. The ties were cut after the Firemen’s ball in the fall of 2013 and S.T. was certain that no sleepovers took place after that time. [ 58 ] S.T. stated that the front of their house looks out across the harbour. It affords a view of Bristol’s Hope and Bell Island.

The rising and setting of the moon is visible from the front of their house as it traverses from East to West, but it is not visible from the back of the house – where H.T.’s bedroom is located. He indicated that the closest house on the back is 1000 feet away. The lights from that house are not visible because it is up a hill and one is only able to see the roof of that house. [ 59 ] S.T. could not remember a time when C.R. would have slept in a room by himself. He indicated that H.T. never slept in anyone else’s room.

He could not recall a time when C.R. slept over that he was feeling unwell. [ 60 ] In cross-examination S.T. indicated that the year 2013 was significant to him because he started his job with the town on January 10th of that year. He works as a heavy equipment operator and, during the summer months, is engaged in hauling stone, sand and attending to water leaks. His hours are variable in the summer months. In winter he works at clearing snow. [ 61 ] S.T. testified that his wife works part time shift work at Walmart. She does not drive and he gives her a ride to and from work.

Except for the time when S.T. spent giving his wife a ride to and from her work (5 minutes in each direction), the children were not left alone in the house. If there was a necessity for babysitting, S.T.’s mother would come over and help out. [ 62 ] S.T. testified that he became a volunteer firefighter in September, 2013. He remembers the time because the Firemen’s ball is during the Thanksgiving weekend every year and, in 2013, he did not yet have a uniform.

It was at that time he indicated that he decided to cut ties with C.R.’s parents. [ 63 ] S.T. indicated that their family home was noisy with that many people on the go. He stated that the Accused, C.T. and J.T. shared a bedroom when C.R. would sleep over. He reiterated that C.R. did not have any sleepovers after the Firemen’s ball in 2013. This was because C.R. was no longer allowed to sleep over after the fall of 2013.

He stated that while C.R. may have continued to visit after this date, he did not sleep over. [ 64 ] S.T. testified that he and his wife did not get out often – perhaps once a year if they were going into St. John’s. On those occasions his mother would come in to look after the children. analysis Business Records

[ 65 ] Records admitted under the Canada Evidence Act are prima facie evidence of their contents for all purposes and, depending on the circumstances, may prove a fact beyond a reasonable doubt. [ 66 ] In this case the records were submitted by the defence. The records consist of medical records compiled by psychiatrists, physicians, counsellors, nurse practitioners and psychologists. [ 67 ] C.R. had no recollection of the meetings that are described in the admitted records. He was unable to either substantiate or refute what had been written about him.

He indicated that at the time that the records were made he was dissociating and does not remember what transpired. [ 68 ] The authors of the reports were not called to amplify what they had written in their various reports. However, that does not prohibit the Court from drawing reasonable inferences from the form and content of the reports. [ 69 ] It was clear from W.N.’s evidence on the stand, and in what she had stated to some of the medical professionals noted in the business records, that C.R., in or around the year 2016, had become involved in substance abuse – including marijuana and opiates.

She corroborated, as was stated in some of the reports, that C.R. was given to prevarication and that he had a propensity to injecting himself, as an attention-getting behaviour, into recitations of situations that he had not personally experienced, but he would characterize his involvement as if he had personally experienced it. [ 70 ] W.N. corroborated the fact that C.R., in 2016, was suffering from hallucinations.

He was seeing and hearing people that were not there. [ 71 ] On account of the foregoing reasons, I conclude, from the corroborated content of the reports that have been tendered into evidence under the Canada Evidence Act that C.R.’s reliability and credibility with respect to the allegations he has made against the Accused must be viewed with a discerning eye. The reports, as corroborated by W.N.’s testimony, raised concerns with respect to the reliability of C.R.’s recollections. the initial interview by the inveStigating officer [ 72 ] The initial interview conducted by Cst. Pynn is problematic.

It was rife with leading questions and innuendo. Certainly not an interviewing technique that could be said to be calculated to assist in a fact finding mission. [ 73 ] Cst. Pynn should have asked the Complainant to give his side of the story in full before asking any questions. He should have made a record of all of the interviews that he conducted. When asking questions, Cst. Pynn ought not to have suggested answers to the Complainant.

It is difficult to say what damage the leading questions might have precisely caused, but it is easy to say that the suggested answers were crucial to issues such as identity and the modus operandi of the alleged crime. Examples of leading questions asked by Cst.

Pynn include: • “Was he trying to talk to you or what?” • “All of a sudden F. (B.) comes in and wakes you up?” • “He turns around and grabs hold of me - what did you do?” • “Did he remove your clothing?” • “Did he hold you down?” • “Did he touch your legs, your buttocks?” • “Is it okay to say this happened quickly?” • “How do you know it was (the Accused)?” • Pynn: “If the light was off how do you know it was him?”; C.R.: “I couldn’t tell it from his voice I could tell by his figure”; Pynn: “But when he spoke did you know 100% it was him?”; C.R.: “Yes”. [ 74 ] Cst.

Pynn was interviewing an impressionable youngster. One, as it turns out, who may have had issues with respect to his self- esteem and has been known to insert himself in the experiences of others with a view to gaining attention. The investigation strategy employed by Cst. Pynn was not appropriate. [ 75 ] On a couple of occasions during his examination Cst. Pynn stated that he believed that C.R. was telling him the truth. It is not appropriate for a peace officer to testify as to his own belief of the veracity of a Crown witness’ testimony.

The investigating officer is permitted to form, or not, reasonable and probable grounds for believing that a crime has been committed. On that basis, if the officer reaches the appropriate threshold, he may lay a charge. However, the determination of whether or not the Complainant is telling the truth is a function reserved to the trier of fact. Stating so during the course of one’s testimony is called “oath helping”. I ignored what Cst. Pynn said, but it shouldn’t have been said. A police officer with 36 years of experience should know better. [ 76 ] At the end of his testimony, Cst.

Pynn stated that “As a result of what I said, he identified the person”. And that, precisely, is the problem. We cannot know whether the evidence of identity was independent or contaminated.

THE DATE OF THE OFFENCE AND THE JURISDICTION OF THIS COURT [ 77 ] Cst. Pynn never went to the site of the alleged crime. He did not interview any of its inhabitants. He testified that the house had been sold. However, three witnesses testified that they were still living in it. Cst. Pynn did not take any photographs of the crime scene. He did not determine that the house had been renovated in 2013 and, after the renovations, the exterior front of the house did not accord with the Complainant’s recollection of how it looked when he was sleeping over. Had Cst.

Pynn taken those steps, he might have discerned that the alleged offence could not have happened in the calendar year 2014 but, in fact, could have only happened in the calendar year 2013. [ 78 ] B.T., H.T. and S.T. gave their evidence in a fair and forthright manner. They did not embellish any facts. They answered the questions that were put to them directly. I believed their testimony and accepted that no sleep overs took place after the fall of 2013 when S.T. elected to terminate discourse with C.R.’s parents.

On the stand he was reluctant to get into the whys and wherefores of this decision, and I did not press him on it. He was, however, adamant as to the course he took and the time frame within which he took it, and I accept that as a fact. [ 79 ] I find, as a fact, that if anything took place as alleged in the Indictment it must have taken place in June or July of 2013. I find, as a fact, that the Accused was 17 years old in June or July of 2013.

As such, he would have been a young offender and, therefore, the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 should have applied. [ 80 ] The Accused did not become an adult until […], 2014. [ 81 ] Section 13(2) of the Youth Criminal Justice Act states as follows: Deemed youth justice court

(2) When a young person elects to be tried by a judge without a jury, the judge shall be a judge as defined in

section 552 of the Criminal Code , or if it is an offence set out in

section 469 of that Act, the judge shall be a judge of the superior court of criminal jurisdiction in the province in which the election is made. In either case, the judge is deemed to be a youth justice court judge and the court is deemed to be a youth justice court for the purpose of the proceeding. [ 82 ] If I were to convict the Accused, I would be doing so as a de facto youth justice court judge. The discrepancy in the proved date of the alleged offence does not have any impact upon the forum in which the matter is to be tried.

PROOF BEYOND A REASONABLE DOUBT [ 83 ] The Crown bears the onus of proving the Accused’s guilt beyond a reasonable doubt. The onus never shifts. It pertains to each and every essential ingredient of the offence with which the Accused is charged. [ 84 ] One of the elements that the Crown has the onus of proving is the identity of the Accused. The Crown must establish, beyond a reasonable doubt, that the Accused was the perpetrator of the crime with which he is charged. [ 85 ] The only evidence of identity that was led by the Crown was the evidence of C.R.

Let us examine C.R.’s testimony with respect to identity to determine whether it is sufficient to meet the required standard of proof beyond a reasonable doubt. [ 86 ] C.R. said, “I got a glimpse of the figure that grabbed me before my face was shoved in the pillow”. [ 87 ] C.R. indicated that the room was dark, but that he could see the perpetrator by the light of the moon. Evidence led by the defence, which I accept, is that there are no lights in the back of the Accused’s house and that the moon rises and sets on the front of the house.

The bedroom occupied by C.R. could not have been lighted by ambient moonlight or any other light since it faces the back of the house. This makes C.R.’s identification of the Accused even more problematic. [ 88 ] C.R. said, “I heard the voice after he told me not to tell anyone - at the end. He put his jeans on, told me not to tell anyone - no one would believe me. He would deny it, and he left the room”. There was no conversation prior to these remarks being made to C.R. [ 89 ] C.R. testified, “I identified the Accused that night by his figure and voice.

He was the only person in the house who would look that way and have the same voice as he did”. This evidence contradicts the statement that C.R. gave the police- in which he indicated that he could not identify the voice of the person who sexually assaulted him. [ 90 ] At no point did C.R. testify that he recognized the Accused, or that he recognized the Accused’s voice.

His identification is based upon the assumption that the Accused was the only one of that size and shape in the house, and the only one in the house who would have had that kind of a voice. [ 91 ] This evidence of identity falls far short of the required standard of proof beyond a reasonable doubt. We have been instructed that proof beyond a reasonable doubt lies much closer to absolute certainty than it does to the balance of probabilities. R. v. Starr , 2000 SCC 40 per Iacobucci, J. at paragraph 242 . [ 92 ] If C.R. had not been influenced by the leading questions put to him by Cst.

Pynn, I would have grave concerns about the proof of identity in this case. If there was no evidence that C.R. was prone to embellishing, and even inventing, scenarios with him at the epicentre - scenarios that were products of his imagination, I would have grave concerns about the proof of identity in this case.

If there was no evidence that, at the time of the giving of the statement, and for some time thereafter, C.R. was experiencing visual and auditory hallucinations, I would have grave concerns about the proof of identity in this case. [ 93 ] I am not saying that nothing happened in the Accused’s household in the year 2013. I am saying that the Crown has neither

been able to prove to me, beyond a reasonable doubt, that whatever happened was instigated by the Accused nor that he was an active participant in the sexual or common assault. Proof beyond a reasonable doubt cannot be based upon speculation and conjecture. [ 94 ] Both charges against the Accused are dismissed. _____________________________ Vikas Khaladkar Justice