R. v. J.B., 2022 NLSC 14

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. J.B. , 2022 NLSC 14 Date : January 27, 2022 Docket : 202004G0176 Her Majesty The Queen v. J.B. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Peter N. Browne Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: December 13, 2021 – December 14, 2021 Date of Oral Judgment: January 27, 2022

Summary:

J.B. was charged with two counts under

section 151 and two counts under

section 271 of the Criminal Code in relation to two incidentswhich allegedly occurred between September 1, 2017 and December 31, 2017. J.B. was self-represented but the Court appointed counsel under

section 486.3(1) of the Criminal Code to cross-examine the complainantand, in addition, an Amicus Curiae. The Court dismissed all four counts as it was not able to conclude beyond a reasonable doubt thatJ.B. was awake when the incidents described by the complainant occurred. Appearances: Willis J. Wiseman Appearing on behalf of Her Majesty The Queen Trevor S. Murphy Appearing as counsel appointed to cross- examine the complainant under

section 486.3(1) of the Criminal Code Jonathan E. Noonan Appearing as Amicus Curiae Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R 320, 118 C.C.C. (3d) 1; R. v. Gagnon, 2006 SCC 17; R.v. W. (R.), (SCC), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56; R. v. K.P., 2019 NLCA 37; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26; R. v. Dinardo, 2008 SCC 24; R. v. J.H.S., 2008 SCC 30; R. v. Chase, (SCC), [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97; R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333, 86 C.C.C. (3d) 97; R. vEwanchuk, 1999 SCC 711; Ontario v.

Criminal Lawyers Association of Ontario, 2013 SCC 43; R. v. Luedecke, 2008 ONCA 716; R. v.E.A., 2020 ONSC 3569; R. v. Mah, 2002 NSCA 99; R. v. H. (C.W.), (BC CA), 1991 3 B.C.A.C. 205; R. v. Starr, 2000SCC 40; and R. v. Kennedy, 2015 NLCA 14 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] J.B. is charged with four sexual offences related to his daughter, A.C.

Specifically, these are: Count #1 on or between the 1st day of September, 2017, and the 31st day of December, 2017, in the province of Newfoundland and Labrador, didfor a sexual purpose touch A.C., a person under the age of sixteen years, directly with a part of his body, to wit: penis, contrary to section151 of the Criminal Code; Count #2 on or between the 1st day of September, 2017, and the 31st day of December, 2017, in the province of Newfoundland and Labrador, did

for a sexual purpose touch A.C., a person under the age of sixteen years, directly with a part of his body, to wit: penis, contrary to section151 of the Criminal Code. Count #3 on or between the 1st day of September, 2017, and the 31st day of December, 2017, in the province of Newfoundland and Labrador, didcommit a sexual assault on A.C., contrary to

section 271 of the Criminal Code. Count #4 on or between the 1st day of September, 2017, and the 31st day of December, 2017, in the province of Newfoundland and Labrador, didcommit a sexual assault on A.C., contrary to

section 271 of the Criminal Code. [2] The offences are alleged to have occurred in the community in which J.B. lives. [3] The Crown called one witness, the complainant A.C. J.B testified on his own behalf. There were no other witnesses called byeither side. [4] I will provide a brief

summary of the most relevant evidence of each witness before analyzing it in more detail. [5] A.C. was born in 2006 and was 12 years old at the time of two alleged sexual incidents. She testified that she and her brotherJ.C. would go visit J.B. and stay over on the weekend. [6] In the first incident, A.C. was asleep in J.B.’s bed in the basement of his house, she awoke and noticed her underwear waspulled down to her knees and she felt one of J.B.’s hands on her pelvic bone and the other on her butt.

In the second incident, A.C. wasagain sleeping in J.B.’s bed and awoke and felt J.B.’s penis poking her butt and one of his hands was on her pelvic bone and the otherwas underneath her breast. [7] J.B. denied all of the allegations. He testified that three to four weeks before he was charged on June 1, 2019, A.C. spent theweekend at his house. Before going to bed that evening A.C. asked if she could sleep in J.B.’s bed as the spare bed was not available andthe springs in the couch were uncomfortable. Prior to this occasion, J.B. says A.C. never slept in his bed.

On the rare occasion when shedid sleep over at his house, A.C. used a spare bed. [8] J.B. admitted that during the course of that evening he consumed 12 beers and smoked some marijuana. He estimates A.C.’syounger brother, J.C., went to bed around 10:30 - 11 p.m. and A.C. around midnight. J.B. says he went to bed closer to 3 a.m. He doesnot recall anything else happening until he awoke the next morning, went upstairs and found A.C. asleep on the couch.

Two weeks laterJ.B. was speaking with A.C.’s mother on the telephone when she informed him that A.C. had told her he had sexually assaulted A.C. andshe would be reporting the matter to the police. the law The burden and standard of proof [9] The onus is on the Crown to prove all the elements of the offences charged beyond a reasonable doubt. That onus never shifts(R. v. Lifchus, (SCC), [1997] 3 S.C.R 320, 118 C.C.C. (3d) 1). [10] I will not assume that if one allegation is proven then J.B.is the type of person who would commit another offence or that it ismore likely that another allegation has been proven.

Credibility and reliability of witnesses [11] In R. v. Gagnon, 2006 SCC 17, the Supreme Court of Canada stated at para. 20: 20 Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. . . . [12] In assessing a witness' testimony, a judge has to consider a number of factors, including: a. the witness' ability to observe or experience events; b. the witness' ability to recall and describe what happened accurately; c. whether the witness' evidence changed during direct examination and cross-examination or whether it is inconsistent withstatements the witness made on previous occasions; d. whether the witness has previously been untruthful in court or committed crimes of dishonesty;

e. whether the witness' evidence is consistent (or not) with other independent evidence, which is accepted by the court; f. whether the witness has any motivation to be untruthful, although in the case of an accused witness the trial judge must not makethe impermissible assumption that an accused will lie to secure an acquittal; g. whether the witness' evidence makes sense as a matter of logic, human experience and common sense; and h. the attitude and demeanour of the witness. For example, the court may assess whether a witness appears forthright or evasive,overly confident or overly vague.

In assessing attitude and demeanour, however, a judge must be careful and consider all possibleexplanations for the witness' presentation, including individual and cultural factors. Demeanour alone is not a sufficient basis to convictan accused where the allegations are credibly denied or there is other contradictory evidence. [13] Because A.C., who is now a young adult, testified to events that happened in her childhood/pre-teen years, the followingdirection from the Supreme Court of Canada from R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56 atpara. 26 applies: 26 . . .

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general,where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteriaapplicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. [14] Finally, in assessing a witness's testimony, the trial judge may accept all, some or none of their evidence (see R. v. K.P., 2019NLCA 37, at paras. 42 and 47). [15] Evidence of an accused person raises unique considerations. I must analyze J.B.’s evidence as the Supreme Court of Canadadirected in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 and R. v. Dinardo, 2008 SCC 24. [16] At para. 28 of W. (D.), the Supreme Court of Canada set out a three-prong framework for the trier of fact analyzing whether anaccused who testifies on his own behalf is guilty beyond a reasonable doubt: 28 . . . 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. [17] In Dinardo, the Supreme Court of Canada revisited this framework and rejected a formalistic or rigid approach to itsapplication at para. 23: 23 . . . [T]here is nothing sacrosanct about the formula set out in W. (D.).

Indeed, as Chamberland, J.A. [of the Quebec Court of Appeal]himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the threedistinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instructionbe respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question ofwhether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Putdifferently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt... . [18] A fourth prong to the W. (D.) framework was added by the Supreme Court of Canada in the decision of R. v. J.H.S., 2008 SCC30 at paras. 12 – 13: 12 The third question, again, is taken by some critics as failing to contemplate a jury's acceptance of inculpatory bits of the evidence ofan accused but not the exculpatory elements.

In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested anadditional instruction: I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a careful considerationof all the evidence, you are unable to decide whom to believe, you must acquit." 13 In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author neverclaimed for them.

W. (D.)'s message that it must be made crystal clear to the jury that the burden never shifts from the Crown toprove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in atriumph of form over substance. In R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521, Cory J. reiterated that the W.

(D.) instructions need not be given "word for word as some magic incantation" (p. 533). In R. v. Avetysan, [2000] 2 S.C.R. 745, 2000SCC 56, Major J. for the majority pointed out that in any case where credibility is important "[t]he question is really whether, insubstance, the trial judge's instructions left the jury with the impression that it had to choose between the two versions of events" (para.19). The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonabledoubt. Sexual assault,

section 271 [19] The elements of the offence of sexual assault have been considered by the Supreme Court of Canada in a number of cases,including: R. v. Chase, (SCC), [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97; R. v. Litchfield, (SCC), [1993] 4S.C.R. 333, 86 C.C.C. (3d) 97; and R. v Ewanchuk, 1999 SCC 711.

The actus reus of sexual assault is established by proof of threeelements: voluntarily or intentionally touching, touching of a sexual nature, and the absence of consent. [20] Sexual assault is a crime of general intent, which means that to establish the required mens rea element, the Crown need onlyprove that the accused intended to touch the complainant. The Crown does not need to prove that the accused intended the touching to besexual. The sexual nature of the assault is determined objectively. [21] In

section 150.1(1) of the Criminal Code, R.S.C. 1985, c. C-46, the defence of consent is not available for any of the chargesalleged against J.B. because of A.C.’s young age during the relevant period of time. Sexual interference,

section 151 [22] Sexual interference is committed by a person who intentionally touches any part of the body of a person under the age of 16years, directly or indirectly, with a part of his or her body or with an object for a sexual purpose. Sexual interference is a specific intentoffence which means that the Crown must establish that the touching had a sexual purpose. Role of Amicus Curiae and appointment of counsel to cross-examine under

section 486.3(1) of the Criminal Code [23] Prior to trial, the Crown applied for, and was granted, an order under

section 486.3(1) that J.B. shall not personally cross-examine the complainant, A.C. Counsel was appointed and did cross-examine A.C. on her evidence–in–chief. [24] As an additional measure, I appointed Amicus Curiae to assist the Court to ensure the orderly process of the trial and ensure theproper administration of justice. In the Supreme Court of Canada decision in Ontario v. Criminal Lawyers Association of Ontario, 2013SCC 43 at paras. 45 – 46, Karakatsanis, J. provided the following succinct description of the role of Amicus Curiae: 45 Amici curiae have long played a role in our system of justice.

As early as the mid-14th century, the common law courts from whichour superior courts are descended received the assistance of amici (see S. C. Mohan, "The Amicus Curiae: Friends No More?", [2010]S.J.L.S. 352, at pp. 356-60). Indeed, as one scholar has noted, "[t]here can be no doubt as to the age and wide acceptance of the amicuscuriae. As to its origin, on the other hand, there is a great deal of doubt. Like so many things of great age, its roots are lost even thoughthe practice still continues" (F. M. Covey, Jr., "Amicus Curiae: Friend of the Court" (1959), 9 DePaul L. Rev. 30, at p. 33).

A number ofcases have recognized the practice; in addition, there are statutory provisions that provide for the appointment of amicus in certaincircumstances. 46 A court's inherent jurisdiction to appoint an amicus in criminal trials is grounded in its authority to control its own process andfunction as a court of law. Much like the jurisdiction to exercise control over counsel when necessary to protect the court's process thatwas recognized in R. v.

Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18, the ability to appoint amici is linked to the court'sauthority to "request its officers, particularly the lawyers to whom the court afforded exclusive rights of audience, to assist itsdeliberations" (B. M. Dickens, "A Canadian Development: Non-Party Intervention" (1977), 40 Mod. L. Rev. 666, at p. 671). Not criminally responsible (“NCR”) [25] During closing submissions, Crown counsel argued that if I were to acquit J.B., it should be on the basis that his evidencesuggested he had a problem with making sexual advances while asleep following intoxication.

As a result, I should make a finding ofNCR. He referred the Court to the decision of the Ontario Court of Appeal in R. v. Luedecke, 2008 ONCA 716 as support for thisposition. [26] In response to this argument, Amicus Curiae counsel directed the Court’s attention to the appeal decision of the OntarioSuperior Court of Justice in R. v. E.A., 2020 ONSC 3569.

In this case, the Crown appealed the acquittal of an accused charged withsexual assault and sexual interference in relation to the same incident arguing the trial judge erred in finding the accused was asleep oracting in an automatic state. [27] In dismissing the appeal, the Court held at paras. 29 - 32 that the trial judge’s reasons indicated that she was of the view thatwhile the touching could be intentional, she was not persuaded beyond a reasonable doubt, that it was intentional, as she could not ruleout that it occurred accidentally while the accused was asleep. [28] In response to the Crown’s argument that what occurred was tantamount to automatism, the Court held that the relevant caselaw, which included, the Luedecke decision, involved circumstances where the nature of the act at issue was such that the inference thatthe act was volitional or intentional was almost inescapable, absent some explanation (i.e., expert evidence in relation to automatism). evidence

J.B. [29] In giving evidence on his own behalf, J.B. informed the Court he was the earliest born of seven children and lived in thecommunity where the alleged incidents occurred for most of his life. Over the course of his adulthood he worked both as a welder and acarpenter. At one stage, before he separated from A.C.’s mother, they lost their children to Social Services for six months. [30] Sometime around the end of April or the beginning of May 2019, A.C. and her brother spent the weekend at his house. WhileA.C. had slept at his house before, she always slept in the spare bed.

This weekend was the first occasion when A.C. slept in his bed. Herecalled this because two weeks later he had a telephone call from A.C.’s mother in which she accused him of sexually assaulting A.C.and that she would be reporting him to the police. J.B. was arrested and charged on June 1, 2019. [31] On cross-examination J.B. admitted to having consumed 12 beers and smoked marijuana that evening before going to bedaround 3 am. He recalled that when he went to bed he was wearing boxer shorts and A.C. was wearing black cargo shorts. When heslept, it was usually on his left side facing the bedroom wall.

Both in direct examination and on cross-examination, J.B. testified he wasknown to talk and snore in his sleep. The next day when he awoke and found A.C. sleeping on the couch he thought he had kept her upby his drinking, snoring and talking in his sleep. He denied ever having touched A.C. sexually saying the allegations were false. A.C. [32] A.C. recalled that as long as she can remember J.B. lived in the community where the incidents took place. She and heryounger brother, J.C., would go and stay at J.B.’s house on weekends.

Sometime between September and November of 2017 she and J.C.were at J.B.’s house, where what will be described from this point onward as Incidents #1 and #2 occurred. Incident #1 [33] J.B., A.C. and her brother were upstairs in the house. A.C. was on the couch and wished to go to sleep. She asked J.B. if shecould sleep in his bed which was located in the basement. He said it was okay so she went there and fell asleep. Her next recollectionwas waking up with her underwear around her knees. She recalled she was facing the wall and one of J.B.’s hands was on her pelvic boneand the other was on her butt.

She felt something from behind so she scooted over to the edge of the bed leaving about one foot betweenher and J.B. [34] On cross-examination, A.C. recalled that she could feel J.B.’s leg on her leg as they were up against each other and that hisunderwear was down by his calves. There was nothing spoken between A.C. and J.B. but she did recall hearing heavy breathing comingfrom J.B. Once she moved over to the edge of the bed she fell back asleep and does not recall anything further happening.

Incident #2 [35] Two weeks after the first incident, A.C. and her brother, J.C., returned to J.B.’s house to spend another weekend. She againended up sleeping in J.B.’s bed. J.C. was in the same room sleeping in a separate bed. A.C. was asleep and woke up when she felt J.B.’spenis poking at her butt. One hand was underneath her breast and the other was on her pelvic bone. Unlike Incident #1, this time A.C.testified that while she was in the same position facing the wall, she scooted off the bed and crawled out of the room on her hands andknees and went upstairs to sleep on the couch.

Sometime later, J.B. came upstairs and went into the kitchen but nothing happened so shewent to sleep. [36] On cross-examination, A.C. testified she heard groaning coming from J.B. and admitted that he might have been asleep. Shealso confirmed that during both incidents she could feel him move his penis towards her butt but at no point did she reach back toconfirm this to be the case. Because it was dark she acted on what she felt.

A.C. also volunteered that on both occasions J.B. had beendrinking saying that from her recollection he was drunk every weekend she was present. [37] A.C. did not disclose what happened on both occasions until May 2019 when J.B came to her, gave her a kiss on the cheek andtold her he loved her. This incident prompted her to tell her mother about what happened during the two incidents in 2017. analysis [38] One of the most challenging roles a trial judge faces is the duty to make credibility and evidentiary assessments.

This exercisebecomes even more exacting in circumstances where the charges before the Court come down to the assessment of the evidence of theaccused versus the evidence of a complainant, as is the case here. [39] A.C. firmly believes that she was sexually assaulted by J.B. on two occasions. She was tearful and upset having to recount herevidence to the Court. This process leaves a profound impact on the complainant.

No victim of sexual assault should feel furthertraumatized by the criminal trial process. [40] However, the purpose of a sexual assault trial is to determine whether the criminal offences have been committed. J.B. deniesthey occurred. If found guilty, he faces very serious consequences, unless the criminal law standard of proof is met. Accordingly, I mustscrutinize all of the evidence with great care and attention. [41] I cannot approach my assessment of the evidence based simply upon sympathy for the complainant or the accused.

A trialjudge must be careful and not turn the matter into a credibility contest between both. Such an approach would be an error as it would failto take into account the burden of proof in a criminal trial and the concept of reasonable doubt. [42] Nor is it my role to resolve the broad factual question of what happened. My function is a more limited one of deciding whetherthe essential elements of the charges have been proven beyond a reasonable doubt. If, after consideration of all the evidence, I am unableto decide whom to believe, I must acquit (see R. v. Mah, 2002 NSCA 99, at para. 49; and R. v.

H. (C.W.), (BC CA),1991 3 B.C.A.C. 205).

[ 43 ] As in any criminal case, I must apply the concept of reasonable doubt based upon the evidence before the Court. It requires me to be sure of J.B.’s guilt. It is a doubt that is “logically derived from the evidence or absence of evidence” (see R. v. Lifchus at para. 39 ). Probable guilt does not equate to proof of guilt beyond a reasonable doubt. The standard of proof beyond a reasonable doubt is more than a probability and much closer to “absolute certainty” (see R. v.

Starr , 2000 SCC 40 at para. 242 ). [ 44 ] In applying the doctrine of proof beyond a reasonable doubt, I have to be mindful that it is the cumulative effect of all the evidence that must satisfy the standard, not each individual piece or item of evidence (see R. v. Kennedy , 2015 NLCA 14 , at paras. 5 - 7 ). Application of the law to the factual findings [ 45 ] As noted at the outset, there are four charges against J.B.

They arise out of two alleged incidents which occurred between September 1, 2017 and December 31, 2017. [ 46 ] Determination of a verdict of guilty or not guilty in respect of these offences must be based on an assessment of the evidence to determine whether it meets proof beyond a reasonable doubt. As J.B. testified on his own behalf, I must conduct the assessment using the W. (D.) analysis. [ 47 ] This is not a case where I can conclude the first prong of the W. (D,) analysis has been met, namely that I obviously believed the evidence of J.B and must acquit.

J.B. was not a compelling witness or one where I could say I definitely believed his evidence, specifically that prior to late April/early May 2019, A.C. never slept in his bed and this was the first occasion she did. At the same time, I was not able to conclude that I disbelieved the entirety of his evidence. [ 48 ] As for A.C.’s evidence, she appeared to be genuinely trying to be truthful in telling the Court about what happened between September 1 and December 31, 2017. She denied ever having stayed over at J.B.’s house three to four weeks before she reported him to the police in 2019.

However, there were some issues with her testimony which do cause me some concern. On cross-examination, A.C. admitted that during the second incident J.B. might have been asleep when he made the groaning noises she heard. More importantly, both A.C. and J.B. were facing in the same direction in the bed during both incidents. In each incident, when she awoke and found her underwear pulled down past her knees it was dark and she could not see.

A.C. did not turn around to confirm if J.B. was awake or asleep and admitted during both incidents she acted on what she felt. [ 49 ] These issues with A.C.’s testimony do not mean she is not being truthful. I am cognizant of the fact that when she was awoken from her sleep she was scared by what she felt was happening. In Incident #1, she reacted by moving to the other side of the bed keeping at least one foot of distance between herself and J.B before falling back to sleep. In Incident #2, she removed herself from the bed.

However, I am unable to rule out with any certainty that during Incidents #1 and #2 J.B. was not asleep when what A.C. described occurred. [ 50 ] The Crown argued that if I decide the incidents occurred while J.B. was asleep, I should rule that he was NCR. In response, I rely on the analysis from the decision in R. v.

E.A . in concluding that in the circumstances of this case, the evidence does not support the inescapable inference that the acts were intentional or volitional. [ 51 ] When I assess the entirety of the evidence presented, I am not satisfied beyond a reasonable doubt as to J.B.’s guilt on any of the four counts. This does not mean that the alleged incidents giving rise to the offences did not take place. Instead, it means that in my assessment the very high burden of proof beyond a reasonable doubt has not been reached.

As a result, I must find J.B. not guilty on all four charges against him. _____________________________ Peter N. Browne Justice