R. v. Voisey, 2023 NLSC 104

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Voisey , 2023 NLSC 104 Date : July 17, 2023 Docket : 202208G0062 HIS Majesty The KING v. Dion voisey 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Stacy Ryan Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: June 28, 2023

Summary: Following trial, the accused was found guilty of one count of break and enter and commit sexual assault, and one count of sexual assault. Appearances:

Brandon G.W. Gillespie Appearing on behalf of the Crown Iain R. W. Hollett Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Ewanchuk, 1999 SCC 711; R. v. J.A., 2011 SCC 28; R. v. Barton, 2019 SCC 33; R. v. G.F., 2021 SCC20; R. v. Daviault, [1994] 2 S.C.R. 63; R. v. Brown, 2022 SCC 18; R. v R.V., 2021 SCC 10 ; R. v. Chase, (SCC), [1987]2 S.C.R. 293; R. v. Kirkpatrick, 2022 SCC 33; R. v. Morrison, 2019 SCC 15; R. v. Sansregret, (SCC), [1985] 1 S.C.R.570; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Ryan, J.: INTRODUCTION [1] Dion Voisey has been charged with two counts pursuant to the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”).They are as follows: Count 1 That DION HERMAN VOISEY on or about the 1st day of July in the year 2021, at the Town of Makkovik, in Newfoundland andLabrador, did break and enter a certain place to wit; a dwelling house situated at [address], Makkovik, Newfoundland and Labrador, anddid commit therein the indictable offence of sexual assault, contrary to Section 348(1)(

b) of the Criminal Code Count 2 That DION HERMAN VOISEY on or about the 1st day of July in the year 2021, at the Town of Makkovik, in Newfoundland andLabrador, did commit a sexual assault on S.A contrary to

Section 271 of the Criminal Code [2] The matter proceeded by way of a judge alone trial.

[ 3 ] The Crown called two witnesses to testify: Cpl. Ben Williams and the Complainant, S.A. EVIDENCE OF CPL. BEN WILLIAMS [ 4 ] Cpl. Williams testified that, on the date in question he received a complaint regarding an unwanted person inside the home of S.A. [ 5 ] Cpl. Williams and Cst. Munro investigated the complaint and took a statement from S.A. The information from S.A. provided grounds to arrest Mr. Voisey, the Accused. [ 6 ] Cpl. Williams and Cst. Munro arrested Mr.

Voisey, brought him to the police detachment in Makkovik, NL, and took a cautioned statement from him. [ 7 ] There was no objection to the statement being used as evidence in the trial. A voir dire was conducted and I am satisfied the Crown has proven the voluntariness of the statement. [ 8 ] The statement was viewed in court. Mr. Voisey admitted to being inside the residence of S.A. on the night in question and admitted to touching her in the manner described. He said his actions were a result of his consumption of alcohol. [ 9 ] Mr.

Voisey also prepared a handwritten apology letter for S.A., indicating he is sorry for his actions. His apology letter stated the following: S., [name abbreviated] I [sic] really sorry for my actions last night I swear it won’t happen again. take care. And once again I [sic] truly sorry. Dion [ 10 ] Cpl. Williams prepared a booklet of photographs depicting the door in S.A.’s home and her bedroom. Cross-examination of Cpl. Williams

[ 11 ] Cpl. Williams was questioned as to why the statement from the Complainant was not videotaped. He indicated she seemed to be overwhelmed and she was more comfortable without being videotaped. [ 12 ] He was questioned about the photos he had taken of the door and he stated he took the photos as part of the investigation. He was not suggesting that any damage in the photo was as a result of Mr. Voisey’s actions. [ 13 ] He stated Mr. Voisey was cooperative, polite, and responsive to questions.

THE Evidence of the Complainant [ 14 ] The Complainant testified she is 28 years old and has lived in Makkovik for most of her lifetime. She lives with her son, who was two and a half years old at the time of this incident. [ 15 ] She called the police on the date in question because she was asleep in her bed with her son next to her, and she was awoken by Mr. Voisey. Mr. Voisey was in her bedroom and his hands were going down her legs. [ 16 ] Mr. Voisey was standing at the edge of her bed. He touched her legs from her knee to her thigh, the inside of her thigh.

She estimated the touching lasted about five seconds. [ 17 ] She stated this is what woke her; feeling his hands going down her thigh. She was on her back in the bed and wearing a sports bra and underwear. The lights were off but she had a lamp on in her room and she said she could see almost everything. [ 18 ] She described what Mr. Voisey was wearing; a black long sleeve shirt and his underwear. His pants were on the floor. [ 19 ] She knew his pants were on the floor because when she told him to get out, he had to put them back on.

She said she quietly told him to leave and she used a quiet voice for fear of waking her son. She later, however, had to raise her voice to ask him to leave. [ 20 ] She said she was very scared and shocked to wake in her bed and find someone else in the room. She did not invite him in and she did not speak to him other than to tell him to get out. He said to her in a questioning tone, “You don’t want me here?” She said she did not, and told him to get out.

[ 21 ] She said he was quiet at first and when she told him to leave, he said ‘okay’, put his pants back on, and went out of the room. She said he closed the door to her bedroom but not all the way because he was peeping inside the bedroom after he went out. He peeped inside her bedroom for approximately 30 seconds. [ 22 ] She kept telling him to leave and he went to the porch. She picked up her son and went by the door, he was still in the porch. She felt like he was in the porch for approximately one minute. [ 23 ] She said the door was locked when she went to bed she knew it was locked because she checked it.

There are two doors in her home and both were locked. She does not know how he entered her home. She did not invite him into her home. [ 24 ] She estimated the touching to be a matter of seconds, enough to wake her and feel his hands moving down her legs. [ 25 ] When asked what she was doing that evening she said she was making an “Every Child Matters” poster for her window. She did not consume any alcohol that evening. Cross examination of the complainant [ 26 ] Counsel for Mr. Voisey questioned S.A. with respect to her positioning in the bed.

It appears that when she and her son went to bed, they were sleeping in the usual vertical position, however, when Mr. Voisey entered the room, they were sleeping in the bed horizontally and her feet were dangling just a couple of inches over the mattress. [ 27 ] She was questioned if she could recall how his fingers were positioned and she said they were going down her leg.

She was asked if his fingers were pointing towards her toes and she said no, they were pointed towards the inside. [ 28 ] She believes he pulled a blanket off her but is not able to say for certain. [ 29 ] She knew at least one of her legs were not covered by the blanket and it could have been both, but she is not certain. [ 30 ] That was the only contact. Mr. Voisey did not touch her breasts or backside. He did not go near her vagina and did not try to kiss her. [ 31 ] There was no conversation other than S.A. telling Mr. Voisey to leave and Mr. Voisey asking if she wanted him there.

[ 32 ] She was sure the door was locked. [ 33 ] S.A. was asked about the physical contact and whether her description of it was different at trial from what she told the police. She did not believe it was different. She told police he touched one leg and at trial she said he touched two of her legs. [ 34 ] She was asked about her relationship with Mr. Voisey. She knew Mr. Voisey as he lived in the same community as her. She denied that they were friends or had any sort of relationship. They did have a closer relationship in 2012 or 2013 and she had been to his house.

When she would go to his house, she would walk in and say hello to the other occupants. issues [ 35 ] Whether or not the crown has proven beyond a reasonable doubt that Mr. Voisey broke and entered the residence of S.A. and committed the indictable offence of sexual assault? [ 36 ] Whether or not the crown has proven beyond a reasonable doubt that Mr. Voisey committed a sexual assault on S.A? THE LAW [ 37 ] Sexual assault is not defined in the Criminal Code . [ 38 ] The Criminal Code defines assault as: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. [39] The actus reus of sexual assault comprises three elements: (

i) touching; (ii) the sexual nature of the contact and; (iii) theabsence of consent (R. v. Ewanchuk, 1999 SCC 711 at paragraph 25; R. v. J.A., 2011 SCC 28 at paragraph 23; R. v. Barton, 2019 SCC 33at paragraph 87; R. v. G.F., 2021 SCC 20 at paragraph 25). i. touching [40] This element of the offence is determined objectively. [41] “It is sufficient for the Crown to prove that the accused’s actions were voluntary” (Ewanchuk, supra at paragraph 25). Voluntariness means that “[t]he conduct in question must be willed” (see R. v. Daviault, (SCC), [1994] 3 SCR 63 atparagraph 74 and R. v.

Brown, 2022 SCC 18 at paragraphs 46-47 and 96). [42] The ‘touching’ element of the offence of sexual assault is met by any direct or indirect application of force to another person,no matter the degree of strength or power applied (Section 265(1)(

a) of the Criminal Code, R. v R.V., 2021 SCC 10 at paragraph 6 andparagraphs 51 to 65). ii. the sexual nature of the contact [43] This element of the offence is also determined objectively; “the Crown need not prove that the accused had any mens rea withrespect to the sexual nature of his or her behavior” (see Ewanchuk, supra at paragraph 25). The ‘sexual nature of the contact’ element ofthe offence of sexual assault was addressed in R. v.

Chase, (SCC), [1987] 2 SCR 293 at paragraph11: 11 The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed inthe light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?” … The part of the bodytouched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all othercircumstances surrounding the conduct, including threats, which may or may not be accompanied by force, will be relevant: … Theintent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor inconsidering whether the conduct is sexual.

If the motive of the accused is sexual gratification, to the extent that this may appear from theevidence it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such amotive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. iii. the absence of consent

[44] This element of the offence is determined subjectively, by reference to the complainant’s internal state of mind toward thetouching at the time it occurred (Ewanchuk, supra at paragraph 26; J.A., supra at paragraph 34; Barton, supra at paragraph 88). [45] The question to be answered for the purposes of establishing this element of the offence is whether “the complainant in hermind wanted the sexual touching to take place” (Ewanchuk, supra at paragraph 48; Barton, supra at paragraph 89).

The focus is placedsquarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant at this stage of the analysis(Ewanchuk, supra at paragraph 30. See also R. v. Kirkpatrick, 2022 SCC 33 at paragraphs 28 and 50). [46] Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence beyond a reasonabledoubt, then there was no consent and this element of the offence is proven (Ewanchuk, supra at paragraph 31; Barton, supra at paragraph89). Mens Rea [47] The mens rea of sexual assault comprises two elements: (

i) intention to touch; and (ii) knowledge of, or wilful blindness orrecklessness as to, a lack of consent on the part of the person touched (Ewanchuk, supra at paragraph 42; J.A., supra at paragraph 24;Barton, supra at paragraph 87; G.F., supra at paragraph 25; Kirkpatrick, supra at paragraph 28). [48] Because sexual assault is a crime of general intent, “the Crown need only prove that the accused intended to touch thecomplainant in order to satisfy the basic mens rea requirement” of intention to touch (see Ewanchuk, supra at paragraph 41). [49] The Crown must prove beyond a reasonable doubt that the accused either knew the complainant was not consenting or waswilfully blind or reckless as to her lack of consent.

In R. v. Morrison, 2019 SCC 15 at paragraph 98, the Supreme Court of Canadareviewed the meaning of these latter two states of mind: 98 Wilful blindness exists where an accused's "suspicion is aroused to the point where he or she sees the need for further inquiries,but deliberately chooses not to make those inquiries": R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411 (S.C.C.), at para. 21 (emphasis inoriginal). Wilful blindness has been characterized as "deliberate ignorance" because it connotes "an actual process of suppressing asuspicion": D. Stuart, Canadian Criminal Law: A Treatise (7th ed. 2014), at p. 261.

"A court can properly find wilful blindness onlywhere it can almost be said that the defendant actually knew": Briscoe, at para. 23, citing G. Williams, Criminal Law: The GeneralPart (2nd ed. 1961), at p. 159. This Court has repeatedly held that if an accused is found to be wilfully blind, that state of mind maysubstitute for actual knowledge: R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570(S.C.C.), at pp. 584-85; Briscoe, at para.21.

Indeed, it is "equivalent to knowledge": Briscoe, at para. 23, citing Williams, at p. 159. [50] Recklessness refers to the state of mind of a person who, “aware that there is danger that his conduct could bring about theresult prohibited by the criminal law, nevertheless persists, despite the risk”: R. v. Sansregret, (SCC), [1985] 1 S.C.R.570, at paragraph 582. By contrast, willful blindness “arises where a person who has become aware of the need for some inquiry declinesto make the inquiry because he does not wish to know the truth.

He would prefer to remain ignorant” (Sansregret at paragraph 584). [51] Finally, I must remind myself of the burden of proof.

[52] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, Cory J. stated as follows on the issue of burden of proof and thepresumption of innocence. At paragraph 39 he states: 39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be givenalong these lines: The accused enters these proceedings innocent.

That presumption of innocence remains throughout the case until such time as the Crownhas on the evidence before you satisfied you beyond a reasonable doubt that the accused is guilty. … [53] In short, if based upon the evidence before the court and you are sure the accused committed the offence you should convictsince this demonstrates you are satisfied of his guilt beyond a reasonable doubt. [54] Later in R. v. Starr, 2000 SCC 40, the Supreme Court of Canada further elaborated on the definition of reasonable doubt.

Atparagraph 242, Iacobucci, J said as follows: 242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolutecertainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less thanabsolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of thesealternative standards are fairly and easily comprehensible.

It will be of great assistance for a jury if the trial judge situates the reasonabledoubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning andappropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proofbeyond a reasonable doubt.

In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177: If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to"a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, inmy view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of nosignificance, but the idea itself must be conveyed. …

POSITION OF THE CROWN [ 55 ] The Crown suggests they have proven all the elements of sexual assault beyond a reasonable doubt. [ 56 ] The Crown suggests the actus reus and mens rea has been proven and in fact has been admitted by the Accused. There was a touching of S.A by Mr. Voisey without the consent of S.A. [ 57 ] The Crown further states the touching occurred in circumstances of a sexual nature. The Crown suggested an examination of the totality of the circumstances must be carried out in order to determine whether the touching occurred in circumstances of a sexual nature.

The Crown suggests the circumstances in this case demonstrate the touching was sexual in nature. [ 58 ] The Crown submits there was no consent as the Complainant was asleep at the time she was touched. POSITION OF DEFENCE [ 59 ] Counsel for the defence agreed there was a touching, however the touching was an attempt to wake the complainant to ascertain whether she would consent to sexual activity. [ 60 ] Counsel for the defence suggests the touching was not for a sexual purpose but rather to wake the complainant.

He suggests a consideration of the body part touched, together with the brief interval of the touching, supports a conclusion that the touching was not sexual in nature but he was taking reasonable steps to ascertain consent. [ 61 ] Counsel for the defence suggest there was nothing more he could do, that waking her was a reasonable step to try and ascertain consent. ANALYSIS OF THE EVIDENCE [ 62 ] The only direct evidence of the incident came from S.A. [ 63 ] Mr. Voisey did not call any evidence, nor does he have to. The onus to establish the elements of the offence rests with the Crown and never shifts.

[ 64 ] The evidence of S.A was direct and forthright. She was clear in her description of the event and I have no reason to disbelieve her testimony. [ 65 ] I accept her evidence and find that it establishes that a young woman, went to bed on July 1, 2021, with her young child. At or between 2:30 a.m. and 3:00 a.m., she was woken by a man who has entered her bedroom, stood at the end of her bed, removed his pants, and touched her leg from knee to inner thigh. [ 66 ] I accept her evidence that it was both legs touched despite the inconsistency between her statement to police and her testimony at trial.

Was there a touching? [ 67 ] The complainant testified she was woken by the touching. Mr. Voisey’s fingers were moving down her leg from her thigh to her knee. In addition, Mr. Voisey, in his cautioned statement, acknowledged that he touched her and said it was a result of his alcohol consumption. [ 68 ] I accept this evidence and find there was a touching or a direct application of force. Was the touching of a sexual nature? [ 69 ] Mr. Voisey entered the home of S.A. between 2:30 a.m. and 3:00 a.m.

He went into the bedroom, removed his pants, and touched the complainant’s legs, while she was wearing a bra and underwear in her bed. The touching woke her. [ 70 ] This entry into the home was random and without invitation. They hadn’t seen each other that day nor had they spoken to each other. There is nothing to suggest that it was reasonable for Mr.

Voisey to attend to this house at that hour in the morning. [ 71 ] I find, upon examination of the totality of the above circumstances, this touching is sexual in nature. [ 72 ] I am not able to accept the submissions of the defence that this touching was an effort to ascertain whether or not S.A would consent to sexual activity. [ 73 ] There are several ways to ascertain consent other than entering her home and touching her.

Did S.A consent to being touched? [ 74 ] S.A woke to being touched. There is nothing in these circumstances that can be construed as consent, and one cannot provide consent whilst sleeping. I find S.A. did not consent to being touched. Was there an intention to touch? [ 75 ] There was not only an intention to touch but there was an actual touching. It was not an accidental touching, it was a direct application of force. This was an intentional touching by Mr. Voisey. Was there knowledge of or willful blindness to lack of consent? [ 76 ] As indicated earlier, the Complainant was asleep when she was touched. Mr.

Voisey knew she was not consenting as she was sleeping. There is nothing in the evidence to establish he thought she was consenting to be touched. [ 77 ] Having considered the totality of the evidence, I find the crown has proven beyond a reasonable doubt that Mr. Voisey committed a sexual assault on S.A. Break and enter and commit the indictable offence of sexual assault. [ 78 ] The Crown must prove Mr. Voisey broke into the home of the complainant and committed the indictable offence of sexual assault. Having found that Mr.

Voisey has committed the offence of sexual assault, I will consider the break and enter. [ 79 ] Section 348 (1) states:

(1) Every one who … (

b) breaks and enters a place and commits an indictable offence therein; … is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and … [ 80 ]

Section 321 states 321 In this Part, break means to break any part, internal or external, or to open any thing that is used or intended to be used to close or to cover an internal or external opening; (effraction) … [ 81 ] Section 348 (3) states:

(3) For the purposes of this

section and

section 351, place means a dwelling house;

… [ 82 ] Finally,

Section 350 states: 350 For the purposes of

section 348 and 349, (

a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and (

b) a person shall be deemed to have broke and entered if … (ii) he entered without lawful justification or excuse by a permanent or temporary opening. [ 83 ] There is no dispute Mr. Voisey entered S.A’s home without lawful justification or excuse. The evidence establishes an uninvited entry into S.A’s home by Mr. Voisey. [ 84 ] He simply opened the door, entered her home, then went into her bedroom, removed his pants and touched the legs of S.A. [ 85 ] I earlier found the touching constituted a sexual assault, I now find Mr. Voisey entered the home of S.A. without reasonable justification or excuse.

It follows that the offence of Break and enter and commit an indictable offence has been proven beyond a reasonable doubt. [ 86 ] In conclusion, I find Dion Voisey guilty of the charge of break and enter and commit the indictable offence of sexual assault, and guilty of the charge of sexual assault as listed in the indictment. [ 87 ] I invite submissions from all counsel on application of the Kienapple principle before any convictions are entered. _____________________________ Stacy Ryan