R. v. J.G., 2022 NLSC 91

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. J.G., 2022 NLSC 91 Date : May 30, 2022 Docket : 202101G1667 Her Majesty The Queen v. J.G. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Vikas Khaladkar Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 18-20, 2022 Date of Oral Judgment: May 30, 2022

Summary:

The Accused was charged with three counts of sexual assault contrary to

section 271 of the Criminal Code and three counts of touching ayoung person for a sexual purpose contrary to

section 151 of the Criminal Code. A charge of making available sexually explicit materialwas acknowledged, by the Crown, as having no evidentiary underpinning. The Accused was acquitted of all the charges brought againsthim. Appearances: Timothy P. O'Brien Appearing on behalf of the Crown Rosellen Sullivan, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122; R. v. B. (G.), (SCC), [1990] 2S.C.R. 30; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742; R. v.

Best, 2016 NLCA 10 STATUTE CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION The Evidence of A.T. [1] A.T. alleges that the Accused, her step uncle, sexually assaulted her on three separate occasions in his home between June andthe end of October in 2019. The incidents are alleged to have taken place in the basement, in the master bedroom and in an adjoiningspare bedroom. A.T. was 12 years old at the time of the alleged incidents and 15 years of age when she testified. [2] A.T. was frequently at the Accused’s house with her younger sister.

They would come to the Accused’s house after schoolwith the Accused’s daughter, who was a few years younger than A.T. On these occasions A.T. would babysit her sister and cousin in theAccused’s home until the adults got home from work. In addition, A.T. and her sister would sleep over at the Accused’s home asfrequently as a couple of times per month. [3] A.T. indicated that the first incident took place while she and the Accused were watching a movie in the basement. Sheindicated that the Accused was wearing a work shirt with his employer’s logo on it and grey pants. She could not remember what shewas wearing.

She indicated that the Accused took off his clothes, took off her clothes and, then, had vaginal intercourse with her. Shesaid that she remembered him moving up and down and holding on to the couch. She could not remember if anyone was making anynoise, nor could she remember how long the sexual assault lasted. [4] A.T. indicated that after the conclusion of the first incident the Accused got up, got dressed, and they went upstairs.

Uponarriving upstairs, A.T. said that the Accused and J.M. (the Accused’s wife who he was living with separate and apart under the same roofat that time) both told A.T. not to tell anyone what had happened. [5] The second incident took place, according to A.T., in the master bedroom. She said the Accused told her that he wanted to talkto her and took her into the master bedroom. She said that he then locked the door. A.T. stated that her younger sister and the Accused’sdaughter were next door. She said that she could hear them playing in their room.

She indicated that one could hear everything in thehouse. [6] A.T. testified that the Accused was wearing blue jeans with a belt. When he took off his blue jeans she said that she couldremember the belt hitting the floor. She indicated that the Accused used a condom on this occasion – which he deposited in a garbagecan in the bedroom after the sexual assault ended. In cross-examination counsel pointed out to A.T. that in her statement to the police,and during the preliminary inquiry, she had indicated that the Accused was wearing yellow pajamas with monkeys who were wearingSanta Claus hats.

She admitted that both of these statements could not be true.

[ 7 ] On this second incident, upon leaving the master bedroom, A.T. indicated that either the Accused, or J.M., but in the presence of her and each other, told A.T. not to say anything about what had happened. [ 8 ] The third incident is alleged to have taken place in the spare bedroom, which adjoins the master bedroom. A.T. testified that J.M. was in the master bedroom and the Accused was in the spare bedroom. A.T.’s friend, O., had slept over the night before but, at the time of the third incident, had left. The Accused’s daughter and A.T.’s sister were playing in the daughter’s room, across the hall.

The Accused and A.T. were playing video games. She had indicated at the preliminary inquiry that the Accused had locked the door. She alleged that the Accused sexually assaulted her on the bed. She indicated that her friend, O., texted her that she was returning. A.T. saw the text message arriving on her phone, which was beside her on the bed as she was being sexually assaulted.

As a result of receiving the text message the sexual activity ceased. [ 9 ] O. was never interviewed by the police about having slept over at the Accused’s residence and the Court did not have the benefit of this potentially corroborative evidence. The Evidence of J.M. [ 10 ] J.M. testified. She is a 31-year old woman who had lived with the Accused for 11 years and had been married to him for about a year. By June of 2019 unhappy differences had arisen between J.M. and the Accused. While they continued to cohabit their matrimonial residence, and co-parented their daughter, they were no longer a couple.

They slept in separate bedrooms, worked for the same employer, and for all intents and purposes had ceased to be a “couple”. [ 11 ] J.M. testified that A.T. and her sister were frequent visitors to their home. They frequently slept over but, often, the younger sister would wake up in the night crying and wanting to go home. On those occasions A.T. would stay and her sister would go home. [ 12 ] J.M. could not recall anyone named O. [ 13 ] J.M. described their three bedroom bungalow in some detail. She said it was a small house that was not very soundproof.

She indicated that there were many occasions when she would tell the Accused to turn down the television set or his video games because she could hear everything. If anyone was speaking in the house, she indicated that she could hear them plainly. She said that you could hear everything going on in the house, upstairs and downstairs, through the walls and through the vents. [ 14 ] J.M. testified that the house was equipped with a number of cameras – indoors and outdoors, upstairs and in the basement – that were installed by the Accused because he would sometimes be away for work for extended periods.

The closed circuit television (“CCTV”) system was on 24 hours a day and she had the ability to see the display on her television set at any time. [ 15 ] J.M. testified that until she left the house at the end of October, 2019 none of the bedrooms had locks on the doors. [ 16 ] J.M. denied ever saying to A.T. that “she should not tell anybody” when A.T. came up from the basement. She denied similar words being said upon A.T. coming out of the bedroom.

She testified that it wasn’t true, and that it did not happen. [ 17 ] J.M. stated that she had no reason to lie for the Accused and, if she had thought that he had sexually assaulted A.T., she would have reported him to the police or someone.

She indicated that it would be concerning to her to have the Accused around their daughter if she was aware that he was sexually assaulting their babysitter. [ 18 ] In cross-examination J.M. indicated that the Accused does not pay child support. [ 19 ] In cross-examination J.M. indicated that there was only one instance that she could remember when A.T. and the Accused went down into the basement together. The Evidence of the Accused [ 20 ] The Accused testified. He indicated that he and J.M. were living separate and apart in the same house commencing in June of 2019.

J.M. moved out of the house at the end of October, 2019. [ 21 ] The Accused indicated that he worked for a property restoration company. He wears a uniform for work and, on a daily basis, his uniform gets soiled. The type of work he carries out often involves his clothing becoming contaminated with materials such as sewage. He comes home, showers and launders his uniform. He testified that he never sat around at home in his uniform. He indicated that he worked at his job from Monday to Friday of every week.

He would also get called out on weekends in the event of emergency work. [ 22 ] The Accused indicated that J.M.’s mother would provide some child care. In addition their daughter attended daycare. A.T., her sister and the Accused’s daughter would come home after school on the bus and A.T. would babysit them during the week until the Accused and J.M. got home from work. [ 23 ] The Accused denied sexually assaulting A.T. [ 24 ] The Accused indicated that until after the end of October, 2019 the bedrooms in the house had no locking mechanism.

He said that he installed a lock on his bedroom door after J.M. had moved out for privacy – because he had begun to date someone – but his daughter locked the door with the key inside the bedroom, on the day that the lock was installed, and he had to break in to the bedroom. He produced a photograph of a broken door frame that he said was the result of him breaking in to the bedroom. He said that he removed the lock afterwards and there are no locks on the bedroom doors. [ 25 ] The Accused recalled O. sleeping over once after J.M. had moved out.

He stated that the sleepovers continued for a time after J.M. had left at the end of October, 2019.

THE DEFENCE ARGUED [26] The Defence argued that the Complainant’s evidence contained material internal inconsistencies, contradictions with otherevidence and that it was illogical, so much so that it would be dangerous to convict. The Defence argued that the acts complained ofcould not have occurred in the close quarters presented by a small house where a number of other persons, including J.M., wereconstantly present. The Defence stated that the evidence showed nothing more than proof of opportunity.

The Crown Argued [27] The Crown took the position that the evidence of A.T. concerning the sexual assaults was cogent and believable. The Crownindicated that there was significant detail provided by A.T., and that any inconsistencies in her evidence were not material and could beexplained on the basis that A.T. was a young person when the alleged sexual assaults occurred. analysis [28] The Crown bears the onus of proving the Accused’s guilt beyond a reasonable doubt. The onus never shifts.

It pertains to eachand every essential ingredient of the offence with which the Accused is charged. [29] A.T. was 15 years of age when she testified. She was 12 years of age at the time of the alleged offences. I am required toapproach the evidence tendered by a young person differently than I would if she was an adult. [30] As was noted by McLachlin, J. (as she then was) in R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122 at paragraphs 24and 25, the law affecting the evidence of children has undergone two major changes in recent years.

Firstly, the requirement that achild’s evidence be corroborated has been removed and, secondly, the law now requires trial judges to be sensitive to the peculiarperspectives of children and to refrain from applying adult tests for credibility to the evidence of children. [31] McLachlin, J. cited with approval the dicta of Wilson, J. in R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30 whenshe said: 56 … [I]t seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with thetestimony of young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that thecourts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proofmust be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as acontradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concernis well founded and his comments entirely appropriate.

While children may not be able to recount precise details and communicate thewhen and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. Inrecent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking andcorroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before the courts must, ofcourse, be carefully assessed but the standard of the 'reasonable adult' is not necessarily appropriate in assessing the credibility of youngchildren. [32] McLachlin, J. went on to state, at paragraph 26: As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence ofchildren should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protecting the liberty ofthe accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt,whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of children not from theperspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesseswhich characterize the evidence offered in the particular case. [33] With the foregoing in mind, I turn to the evidence of A.T. and, in particular, to those aspects of her testimony that wereinconsistent. [34] A.T. testified that on one of the occasions when she was allegedly sexually assaulted the Accused was wearing jeans with abelt.

She remembered the sound of the belt when the Accused’s pants fell to the floor. She was challenged in relation to this testimony incross-examination. She was reminded that in her statement to the police and at the preliminary inquiry, she had testified that on thatoccasion the Accused was wearing yellow pajama bottoms that were decorated with monkeys wearing Santa Claus hats.

A.T.acknowledged that she had reviewed her statement to the police and the transcript of her evidence at the preliminary inquiry beforetaking the stand. [35] The Crown argued that the inconsistencies relating to what the Accused was wearing fall within the dicta in R. v. W. (R.). TheCrown’s view was that this is a peripheral inconsistency, one that does not go to the core of the evidence. [36] I disagree. This is not a confusion relating to time, or place, that children’s testimony might be heir to. This is a materialinconsistency that the witness was unable to explain when confronted.

Even with the relaxed rules concerning the evidence of children,this inconsistency does affect A.T.’s credibility. I do not see how it cannot. The evidence concerning the blue jeans and the belt weregiven at trial when the witness was 15 years of age. It was, clearly, a material deviation because it bore no resemblance to what she hadsaid before. [37] There are other evidentiary issues that I must consider.

Not internal inconsistencies in A.T.’s evidence, but contradictions in theevidence as a whole on certain points that are of some consequence. [38] On the occasion of the first alleged sexual assault in the basement of the house, A.T. testified that the Accused was wearing hiswork uniform while he was watching a movie. The Accused testified that he never wore his work uniforms in the house after coming

home from work because they were soiled on account of the type of work that he did. He testified that he would come home, shower andchange into clean clothing. The Accused’s evidence on this point is plausible. His job entailed cleaning up sewage and other hazardousmaterials.

One would not expect him to be sitting around at home in dirty clothing, and I believe him when he says that he did not do so.I do not accept A.T.’s evidence that she was watching a movie with the Accused while he was dressed in his work clothing. [39] At the conclusion of the first alleged sexual assault A.T. testified that both she and the Accused went upstairs and, immediately,were confronted by J.M. – who told A.T. not to tell anyone. J.M. would have had to know what had just transpired in the basement inorder for her to make the statement alleged.

J.M. denied that she said anything of the sort to A.T., as did the Accused. J.M. testified that ifshe had become aware that the Accused was sexually assaulting A.T., she would have contacted the police. The evidence of A.T. on thispoint defies common sense and logic. I accept J.M.’s testimony that it did not occur. [40] The evidence that A.T. gave concerning the second alleged sexual assault was more detailed than the first. On this occasion shetestified that the Accused put on a condom before engaging in sexual intercourse with her.

She stated that he discarded the condom in agarbage can in the bedroom once he was finished. [41] At the conclusion of the second alleged sexual assault A.T. testified that either the Accused, or J.M., but in the presence of A.T.and in the presence of one another, told her again not to tell anybody. Both J.M. and the Accused testified that this never took place.Again, this allegation defies common sense and logic. I have a reasonable doubt about whether either J.M. or the Accused ever told A.T.,in the presence of each other, not to tell anyone what had happened. [42] I found J.M. to be a credible witness.

The Crown argued that I should find her disingenuous: that she was testifying in themanner that she did in order to protect her husband. To the contrary, J.M. had no reason to protect the Accused. She had begun to liveseparate and apart from him (albeit under the same roof) in June, 2019. She owed him no loyalty. She indicated that they are co-parenting their daughter, but that is the extent of their relationship. She has moved on. She doesn’t even rely upon the Accusedmonetarily – he pays her no child support.

It cannot be said that she is protecting him from going to jail because it would result in amonetary consequence to her. [43] I found J.M. to be forthright in her testimony, and fair. She carefully described the relationship between her family and A.T. Shefairly described the attributes of the house that they lived in. She thought about the questions that were put to her and answered them tothe best of her ability. She testified that she would have heard any untoward goings on because of the way that the house wasconstructed.

She had access to CCTV throughout the house, including the basement, and could have watched what was happening on hertelevision if she needed to monitor anyone. [44] A.T. testified that during the third alleged sexual assault – the one that occurred in the guest bedroom contiguous to the masterbedroom – that she and the Accused were playing video games. She indicated that the Accused got up and locked the door and, then,sexually assaulted her.

She indicated that J.M. was in the adjacent master bedroom when the alleged sexual assault took place. [45] Both J.M. and the Accused testified that between June and November, 2019 the bedroom doors did not have any lockingmechanisms. [46] The disparities between the evidence of A.T. and the evidence of J.M. and the Accused give me pause. [47] Every accused person is cloaked in a presumption of innocence that cannot be dispelled until the Crown has proved, beyond areasonable doubt, that the accused person committed the crimes with which he is charged.

That onus never shifts from the Crown to theaccused person. [48] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada held that proof beyond areasonable doubt “does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolousdoubt”. [49] In R. v.

Starr, 2000 SCC 40 the Supreme Court of Canada pointed out that the Crown’s burden of proof lies “much closer toabsolute certainty than to proof on a balance of probabilities”. [50] An accused person is never obligated to take the stand, and has the absolute right to remain silent and call no evidence. Noadverse inference can be drawn against the accused person if he chooses to exercise the right to silence. And the burden remains on theCrown to prove each element of the offence beyond a reasonable doubt.

However, when an accused person elects to waive his right toremain silent and testifies, the Supreme Court of Canada, in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 has providedguidance to trial judges. The Supreme Court of Canada has indicated that where the credibility of an accused person is in issue, the ruleof reasonable doubt applies to the issue of credibility. [51] The Supreme Court of Canada, in R. v. W. (D.), has mandated a three-stage analysis: 1. If you believe the evidence of the accused, you must acquit. 2.

If you do not believe the evidence of the accused, but are left in reasonable doubt by it, you must acquit. 3. If you do not believe the accused, and are not left in reasonable doubt by his/her evidence, then you must still determine whetheryou are left in reasonable doubt by the evidence that you do accept. [52] In the third step of the R. v. W. (D.) analysis the trial judge must consider all of the evidence presented to determine whether

the accused’s guilt has been proven beyond a reasonable doubt. [ 53 ] The Newfoundland and Labrador Court of Appeal re-stated the rule in R. v. W. (D.) in R. v. Best , 2016 NLCA 10 at paragraph 7 . The Court of Appeal indicated that it is necessary for the judge to consider whether or not he believes the accused and, if he does not believe the accused, then whether any of the accused’s evidence leaves him with any reasonable doubt about the accused’s guilt.

If, after these considerations, there is no reasonable doubt then the judge must still ask whether he is convinced of the accused’s guilt on the basis of the evidence that is accepted. CONCLUSION [ 54 ] I am left in a reasonable doubt by the evidence adduced on behalf of the Accused. I am not convinced beyond a reasonable doubt by the evidence of A.T. Under our system of justice I must exercise that doubt in favour of the Accused. [ 55 ] All of the charges against the Accused are dismissed. _____________________________ Vikas Khaladkar Justice