R. v. Grimes, 2023 NLSC 20

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Grimes , 2023 NLSC 20 Date : February 10, 2023 Docket : 202001G5337 HIS Majesty The king v. Krysta Grimes 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: January 11-16, 2023 Date of Oral Judgment: February 10, 2023

Summary: The Accused was acquitted on a charge of sexual exploitation by a person in a position of trust or authority. Appearances:

Jacqueline A. MacMillan Appearing on behalf of the Crown Rosellen Sullivan, K.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122; R. v. H. (C.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 44 W.C.B. (2d) 162 (Nfld. C.A.) STATUTE CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Khaladkar J.: INTRODUCTION [1] The Accused, Krysta Grimes, was at all material times a substitute teacher employed by the Newfoundland and LabradorEnglish School District.

The Complainant was a student of the Accused in 2018. [2] The Accused is charged with sexual exploitation as follows: BETWEEN THE 1st day of March, 2018 and the 30th day of June, 2018, at or near Logy Bay-Middle Cove-Outer Cove, in the Provinceof Newfoundland and Labrador, being in a position of trust or authority towards a young person, did for a sexual purpose touch directlyor indirectly a part of her body, with a part of the body of C.O., thereby committing an Indictable offence contrary to section 153(1)(a)–153(1.1)(

a) of the Criminal Code. [emphasis in original] [3] The Complainant was over the age of 16, and under the age of 18, during the requisite time period. For the purposes of thecharge he was a young person. Consent is not an issue in this case. Similarly, the fact that the Accused was in a position of trust orauthority towards the Complainant is not in issue – it being conceded by the Defence, during submissions, that the only issue is whetheror not the Crown has proved, beyond a reasonable doubt, whether the alleged sexual acts took place. [4] The case has several facets.

The first involves the qualitative nature of the investigation undertaken by the RoyalNewfoundland Constabulary (“RNC”). The second involves the evidence of the Complainant and the extent to which inconsistenciesought to be considered in assessing his credibility. [5] The Crown called three witnesses to testify: Cst. Nicole Percey, the principal investigator; Andrew Hickie, Director of HumanResources for the Avalon District of the Newfoundland and Labrador English School District; and the Complainant. [6] The Defence called no evidence. the evidence of cst. Nicole percey [7] Cst.

Percey has served with the RNC since August of 2006. She commenced working with the Child Abuse/Sexual AssaultUnit of the RNC in February, 2018. On January 9, 2019 Cst. Percey was assigned the role of lead investigator in relation to the matterbefore the Court. It was the first file in which she assumed the position of lead investigator. [8] In addition to interviewing the Complainant and Andrew Hickie, Cst. Percey obtained a number of warrants. As a result of oneof those warrants, she determined that there had been four text messages exchanged between the Complainant and the Accused.

Two ofthose text messages were initiated by the Complainant, two by the Accused. And there were two telephone calls, one of about threeminute’s duration and the other just seven seconds. The calls and text messages all took place after the date range of the alleged offence.Cst. Percey stated there was nothing of investigatory consequence mined as a result of the execution of the warrants. [9] Warrants were obtained to conduct forensic examinations of the phones of both the Complainant and the Accused.

There wasno pertinent information gleaned from either cellphone as a result of those examinations. [10] The Complainant’s laptop was examined. The Accused was found as a contact on the laptop, including her name and telephonenumber. No other information was discovered.

[ 11 ] The Complainant’s vehicle was searched on January 12, 2019. No evidence was obtained as a result of the search some six months or more after the alleged offence had taken place. [ 12 ] A “One Party Consent” was obtained – it is a warrant for an undercover police officer to pose as the Complainant on his accounts with a view to gathering evidence against the Accused. It was granted in March, 2019 for a period expiring in May, 2019. There was no communication between the Accused and the undercover police officer during that time period and no evidence was garnered as a result. [ 13 ] Cst.

Percey indicated that she attempted to speak to other students concerning the matter, but no one wished to provide a statement or get involved. [ 14 ] Finally, Cst. Percey obtained a warrant to photograph the Accused’s tattoos because the Complainant told her that the Accused had distinctive tattoos on her “bum”. The photos were taken on May 23, 2019. [ 15 ] The Accused was charged in August, 2019. She was never asked to provide a statement. [ 16 ] In cross-examination it was put to Cst. Percey that she could have obtained a cellphone tower records authorization warrant.

The purpose would be to determine when the Accused’s and Complainant’s cellphones were in the same place at the same time. The information could have corroborated the Complainant’s statement and testimony that put the parties together at a particular time and place. She testified that she was unaware, at the time, that this form of evidence was available. [ 17 ] Cst. Percey acknowledged that the Complainant had denied that anything happened. She testified that both his parents kept asking him if this was true.

She acknowledged that it would be important to know how the Complainant’s parents had questioned him and what questions were asked. [ 18 ] Cst. Percey acknowledged, in cross-examination, that it is important when taking statements from youth and children to obtain first hand statements to the extent possible. She stated that she was aware of the risk of contamination and the potential of compromising reliability. She acknowledged that if others had spoken to the Complainant, the investigator would want to speak to those persons.

She acknowledged that this was particularly so where the Complainant had initially denied any involvement and, later, made an allegation. [ 19 ] Cst. Percey indicated that she never spoke to the Complainant’s mother. She spoke to the Complainant’s father by telephone on January 9, 2019 but kept no notes of that conversation. She indicated that the conversation was very brief. She indicated that she had been assigned the file and would be in touch. She spoke to the father to set up taking the Complainant’s statement. [ 20 ] Cst.

Percey never determined from the Complainant’s parents the circumstances under which he changed his story from an absolute denial of any improper conduct to one that implicated the Accused in inappropriate sexual behaviour. [ 21 ] There were rampant rumours about the Accused. They consisted of the Accused having improper relationships with grade XII students and others, to reports that the Accused had been caught in a compromising position in woodworking class. The authors of some of those rumours were not interviewed by Cst. Percey even though their identities were known.

The authors of two emails who made allegations against the Accused and sent them to the school authorities were contacted. In both instances it was discovered that the authors were basing their comments upon hearsay. [ 22 ] Similarly, Cst. Percey acknowledged that knowledge of the Accused’s tattoos was more widespread than the Complainant. She acknowledged that other persons had seen photos of the Accused’s tattoos. [ 23 ] Cst. Percey acknowledged that she recovered no evidence of a text message sent by the Accused to the Complainant on the morning of December 20, 2018.

This will assume some importance later in this decision. [ 24 ] Cst. Percey testified that she applied for, and received, a judicial authorization to photograph the Accused’s tattoos. The Complainant had indicated, in a statement, that the Accused had tattoos on her left leg. In fact the Accused’s tattoos were on her right leg. Cst. Percey indicated that there was no follow up with the Complainant to explain this inconsistency. the evidence of andrew hickie [ 25 ] Andrew Hickie was the Director of Human Resources of the Avalon District for the Newfoundland and Labrador English School District.

He received a call from one of the high schools for which he was responsible on December 20, 2018. The Principal and Vice-Principal sought advice concerning allegations about a teacher. When he finished the telephone conversation he contacted the teacher’s union representative and set up a meeting with the Accused and her union representative. His first contact with the Accused on that date was at 10:05 a.m. by telephone.

He met with her and the union representative, in person, at noon on December 20, 2018. [ 26 ] Andrew Hickie contacted the RNC on January 8 or 9, 2019. [ 27 ] Andrew Hickie testified that the Accused was employed as a substitute teacher for five and a half to six years. A substitute teacher replaces permanent teachers throughout the school district. Substitute teachers are not assigned to a particular area. [ 28 ] Andrew Hickie produced a printout of the dates on which the Accused was substituting and the Complainant was present, or supposed to be present, in her class.

This was entered into evidence by consent. [ 29 ] Andrew Hickie met with the Complainant’s father twice on January 8, 2019. He then met with the Complainant on January 9, 2019. direct evidence of the complainant [ 30 ] At the time that he testified the Complainant was 21 years of age. At the time of the alleged offence he was between 16 years

and seven months and 16 years and 11 months of age. He was then in Grade XI. [ 31 ] The Accused was the Complainant’s substitute gym teacher. She also taught him, as a substitute, in a class of World Geography. He did not attend the same school in Grade X and did not know the Accused before commencing his Grade XI studies. [ 32 ] Gym class was always conducted at the gymnasium. There was an office attached to the gymnasium where the Complainant, other students and the Accused would sit around and chat.

There was a speaker in the office that the students or teachers would connect to for playing music. [ 33 ] The Complainant testified that he had access to the Accused’s cellphone in the gymnasium office. He would use it to change the music playing on the speaker or to access the camera to take pictures of the bulletin board for sports news at the school. The Accused had given the Complainant her password for this purpose. [ 34 ] The Complainant indicated that he added himself to the Accused’s Snapchat account at a time when no one else was present.

A few days later he added the Accused to his own Snapchat account, allowing them to communicate with one another through that application. Messages on Snapchat, including photographs and video, disappear shortly after they are read if sent in the “red” stream. They can be saved if they are sent in the “blue” stream. [ 35 ] The Complainant initiated a Snapchat conversation with the Accused in March, 2018. This was augmented by telephone calls and text messages.

Both the Complainant and the Accused had iPhones. [ 36 ] The Complainant indicated that he did not save any images of the Accused on his cellphone. [ 37 ] He testified that he and the Accused planned to get together for a couple of weeks over Snapchat. He received his driver’s license in March, 2018 and had access to a newer SUV that he used to drive to school. [ 38 ] In his direct evidence the Complainant testified that he and the Accused met up around the end of the school year in Grade XI. They met up on a day that was not a school day at some time in the afternoon. He testified that it was daylight.

He indicated that they met in a subdivision of Logy Bay-Middle Cove-Outer Cove that was off Pine Line. They left the Accused’s vehicle there and proceeded in his car to Outer Cove in an area of Outer Cove whose name he did not know. [ 39 ] He indicated that they sat in the back seat of his car. There was a brief conversation. They got undressed. There was touching on the part of both of them. The Accused touched the Complainant’s genitals and they proceeded to have sexual intercourse. A condom was used and was thrown in the garbage somewhere.

The Complainant could not recall where he disposed of the used condom. [ 40 ] The Complainant testified that he saw two tattoos. A large rose tattoo on the Accused’s left thigh and a middle finger on her “ass”. The finger was black. The roses were black and greyish. The tattoo of the middle finger was small – one to two square inches. The other tattoo was quite large – six to eight inches by four inches. Both tattoos were on the left side. [ 41 ] The Complainant said that he had seen the rose tattoo before through pictures that were sent to him on Snapchat by the Accused.

He stated that he had not seen those tattoos on anyone else. [ 42 ] After having sexual intercourse the Complainant drove the Accused back to her car. He did not recall what he did afterwards. [ 43 ] The Complainant only saw the Accused at school after the alleged offence. But they continued communicating through Snapchat. They did not make any further plans to meet in person. [ 44 ] The Complainant said that he began hearing people talking about the Accused in school in Grade XII.

He indicated that he engaged in those conversations with three of his close friends and told them details about what had happened. [ 45 ] The Complainant last heard from the Accused in December, 2018. The Accused communicated with the Complainant by text message. He said she was wondering if he had heard anything from his parents or the school. He said that he was at home in bed at the time the text arrived. He saw the message when he woke up. He said he did not save the message. [ 46 ] The next day he was called into the office by the Principal. He met with the Principal, Vice-Principal and his mother.

The Principal indicated that there were rumours going around that the Complainant had had a sexual relationship with the Accused. The Complainant denied any relationship. [ 47 ] The Complainant said that he deleted the Accused from social media and deleted his conversation with the Accused. His laptop was synced to his cellphone, and he deleted everything on his computer as well. [ 48 ] The Complainant indicated that his parents did not question him over the holidays. However, they began to question him again after returning to school.

He told his father what had happened in 2019 and met with the representatives of the school board on numerous occasions. cross-examination [ 49 ] Under cross-examination, the Complainant indicated that he gave two statements to the police. One on January 10, 2019 and the second on January 7, 2020, to review the results of the phone records. He said that was given an opportunity, before Court, to review both of his statements. [ 50 ] The Complainant indicated that he is a resident of Outer Cove.

He stated that he is familiar with the area and has spent a lot of time driving around in it. [ 51 ] The Complainant stated that the school was rife with rumours about the Accused. The rumours were not limited to the softball

team, but permeated throughout the school. It was well known at the school that it was an accomplishment to add the Accused to one’s Snapchat account. At one point someone said something inappropriate to the Accused and she deleted everyone at the school from her Snapchat account. [ 52 ] The Complainant’s friends knew that he had added her on Snapchat because he told them. When he heard the rumours about the Accused in March, 2018 he added himself to her Snapchat account because of the rumours.

He stated that he wanted people to know that he was on Snapchat with the Accused. [ 53 ] The Complainant acknowledged that he had repeated free access to the Accused’s cellphone and her camera, and that he used her camera. By virtue of his acknowledgement that she had given him her password, he would have had access to all of the information contained on the cellphone. [ 54 ] The Complainant indicated that he told the Accused what he wanted to do with her.

He wanted to push it to see how far it could go, and was telling his friends about it as he did so. [ 55 ] He was questioned about his statement, in direct examination, that the alleged offence with the Accused took place at the end of the school year. He stated that he remembered it being before they were let out for the summer. It was pointed out to the Complainant that he had told Cst. Percey that the alleged offence occurred in April because it was nicer out and it was just after all the snow was gone.

The Complainant countered by stating that he recalled, now, that it was the end of the school year, it was a weekend and it was daytime. He stated that it was a weekend because he wasn’t in school and she wasn’t in school. [ 56 ] In his direct evidence the Complainant indicated that they parked in Outer Cove. He said he couldn’t remember the name of the area in Outer Cover. During cross-examination the Complainant said that they parked just off Doran’s Lane in Outer Cove.

He explained the inconsistency by indicating that he could not remember the name of the road earlier in the day. [ 57 ] While the Complainant said that he couldn’t remember what he did the rest of the day after the alleged offence, he acknowledged he told Cst. Percey that he probably went out with his buddies that night. He acknowledged that he told Cst. Percey that the Accused texted him while he was driving away. [ 58 ] In relation to his lapses of memory the Complainant explained to Cst. Percey that it was like a joke. He didn’t think about it after the fact.

As a result he could not remember the details. [ 59 ] On the witness stand the Complainant said, in cross examination, that both he and the Accused were fully naked in the back of his car. He said that she was riding on top of him. To the contrary, in his statement to Cst. Percey, he told her that the Accused was laid across the seat and that’s how he had sex with her. I note that in re-direct examination the Complainant was asked a leading question with respect to the position they occupied while having sex and whether they could have switched positions.

He answered by indicating that he could not remember, but that it was possible. [ 60 ] In cross-examination the Complainant indicated that he was able, based upon a review of the information located in his cellphone, to reconstruct what he was doing on a specific date, for example, July 13, 2018. This was one of the dates on which there was a text from the Complainant to the Accused that went unanswered. The Complainant was able to reconstruct, for Cst.

Percey, that he was camping in Logy Bay with a friend, A.H., and that they were drinking. [ 61 ] He admitted that he did not delete the entire history on his cellphone. He admitted in cross-examination that it was possible for him to reconstruct what he was doing based on what remained on his cellphone. [ 62 ] The Complainant said that pictures were sent to him by the Accused, who had saved them to her cellphone. He said that he knew this because they were sent to him in the blue stream of Snapchat.

He admitted, under cross-examination, that it is a fair inference that he saw pictures of the Accused that were saved to her camera on her camera roll. [ 63 ] The Complainant told Cst. Percey that he had not saved any pictures to his cellphone. However, he had saved pictures within Snapchat on his cellphone for several months. [ 64 ] The Complainant told Cst. Percey that he had not told anyone about the incident because it was too risky. On the stand he admitted that he had told at least three of his closest buddies about it. He was unable to explain why he lied to Cst. Percey.

Defence counsel suggested that it was a means of showing off to his buddies – which teenaged boys are apt to do. However, this is a form of sexual stereotyping and, for the purposes of this decision, I will not engage in that sort of speculation. [ 65 ] The Complainant said that he told Cst. Percey that he heard rumours about the Accused’s sexual activity at the beginning of school in the fall of 2018. In fact, the Complainant admitted that he was the source of the rumours, but that he did not want Cst. Percey to know that. [ 66 ] The Complainant acknowledged that he told Cst.

Percey that his last contact with the Accused was between 7:30 a.m. and 9:00 a.m. on December 20, 2018. He indicated that it was a text message. He acknowledged that he told Cst. Percey, in his first statement, that all of his contact with the Accused was through Snapchat, text or iMessaging.

However, during the giving of his second statement, to discuss the somewhat scant phone records that had been received by the police, he indicated that their communication was all through Snapchat. [ 67 ] The Complainant explained the discrepancy by stating that, for the most part, the messaging was through Snapchat. [ 68 ] There were two phone calls and four text messages obtained through the searches of the cellphone records of the Complainant and the Accused.

Defence counsel obtained particulars through cross-examination: • On July 13, 2018 there was a text from the Complainant to the Accused that went unanswered. It will be remembered that the

Complainant was able to determine, from his cellphone history, that he was camping that day with his friend, A.H., and that they weredrinking; • On September 24, 2018 there were two text messages, in rapid succession, sent from the Accused to the Complainant. Thesemessages were unanswered. The Complainant indicated that these were probably the Accused looking for him to see why he was absentfrom class; • On October 10, 2018 there was a phone call from the Accused to the Complainant lasting three minutes and 14 seconds.

TheComplainant acknowledged that this could have been the day that he separated his shoulder playing hockey and was taken to hospital inan ambulance; • On October 19, 2018 the Complainant called the Accused. The call lasted for 17 seconds. The Complainant indicated that he hadcalled the Accused to see if he had left his gym bag in the gymnasium office; and • On November 16, 2018 the Complainant sent a text message to the Accused that was unanswered.

It was at 7:06 a.m. and theComplainant was unable to explain what it might have been about. [69] There was no record of text messages being sent between the Accused and the Complainant at any time between March 1, 2018and June 30, 2018. [70] There was no record of a text message being sent by the Accused to the Complainant on December 20, 2018. [71] That concluded the Crown’s case. The Defence elected not to call any evidence. The Crown Argued [72] The Crown took the position that the evidence of the Complainant concerning the charge of sexual interference was cogent andbelievable.

The Crown indicated that there was significant detail provided by the Complainant, and that any inconsistencies in hisevidence were not material and could be explained on the basis that the Complainant was a young person when the alleged offenceoccurred. The Crown indicated that the relationship between the Accused and the Complainant, that of teacher and student, is one oftrust. The Crown indicated that even if a power imbalance was not perceived by the Complainant, one existed in fact. THE DEFENCE ARGUED [73] The Defence did not dispute that the relationship of teacher and student is one of trust.

Sullivan, K.C. argued that theComplainant’s evidence contained material inconsistencies coupled with a shoddy investigation. She stated that there was no credibleevidence of an offence. [74] Sullivan, K.C. indicated that the police had tunnel vision. They ignored the red flags that were evident in the case and barreledon to prove a conclusion that they had already reached. She indicated that there was potential contamination of the Complainant’sevidence by parents who were repeatedly pressuring him to confess.

There was no investigation into the Complainant’s owninvolvement in starting the rumours about the Accused in his school. There was no evidence from cellphone towers that could havepinpointed the date, time and location if the two phones were together when the offence allegedly took place, or conversely, if they werenever together. [75] Defence counsel indicated that the ease with which the Complainant pivoted when confronted with contradictions in histestimony should be cause for the Court’s concern. It points, Sullivan, K.C. argued, to a person who is playing loosely with the truth andmanipulates his answers.

As an example, counsel made reference to what happened on December 20/21, 2018. The Complainant saidthat the Accused sent him a text between 7:30 a.m. and 9:00 a.m. asking him to protect her. There is no evidence that the Accused sentthe Complainant a message on either of those days. Furthermore, the Accused was not apprised of the existence of the rumour until 10:00a.m. on December 20, 2018 when she was asked to attend a meeting with Andrew Hickie at noon. analysis [76] 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. [77] 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”. [78] 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”. [79] 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 an accused person if that person chooses to exercise their right to silence. And the burdenremains on the Crown to prove each element of the offence beyond a reasonable doubt. [80] The Complainant was 21 years of age when he testified.

By his accounting, he was almost 17 years of age at the time of thealleged offence. I am required to approach the evidence tendered by a young person differently than I would if he was an adult.However, that approach is one that must be modified by the witness’s age and level of maturity at the time of the alleged offence. [81] McLachlin J. cited with approval the dicta of Wilson J. in R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30, when shesaid:

… [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 ofyoung children. [82] The degree to which I am bound to exercise some latitude in assessing the evidence of a witness who was a child when thealleged offence took place is dependent upon the child’s age at the time of the alleged offence. In the case before me the Complainantwas almost 17 years of age. He had virtually completed his Grade XI education.

He had a driver’s license and was responsible enough tohave the use of a relatively new automobile to drive himself to school and, presumably, about town. [83] This is not a case of a witness who experienced the alleged offence while very young or even moderately young. TheComplainant presented as a young man who, at the time of the alleged offence, possessed of all of his faculties, was pursuing adultactivities such as driving, camping and drinking with his friends. [84] McLachlin J. went on to state in R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122: 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. [emphasis in original] [85] Common sense tells me that I ought not to assess the evidence of the Complainant much differently than I would the evidenceof an adult. He was almost an adult at the time of the alleged offence and there is no cogent reason why a significantly different standardought to be applied to his evidence. [86]

Section 153 of the Criminal Code, R.S.C. 1985, c. C-46, contains several elements that must be proved by the Crown. Firstly,that the Accused occupied a position of trust and authority vis-á-vis the young person. Secondly, that the Complainant was a youngperson. And, thirdly, that the Accused touched a part of the young person’s body with her own for a sexual purpose. [87] The first element is conceded by the Defence. There is no question that a school teacher, be she a permanent teacher or asubstitute teacher, occupies a position of trust and authority concerning the students in her charge.

I find that the Crown has proved thatthe Accused was a person who was in a position of trust or authority vis-á-vis the Complainant. [88] Secondly, there is no issue that the Complainant was a young person within the meaning of the charging section. His age is notin issue. [89] I must determine whether the Crown has proved, beyond a reasonable doubt, the existence of the third element in this case. [90] The only evidence concerning the inappropriate touching for a sexual purpose comes from the Complainant and no othersource.

It is his evidence, therefore, that must be analyzed to determine whether the Crown has met its burden. [91] The Complainant’s evidence contained a number of inconsistencies. [92] Wells C.J.N. (as he then was), in R. v. H. (C.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 44 W.C.B. (2d)162 (Nfld. C.A.), discussed the importance of considering inconsistencies when assessing credibility: One important aspect to be considered in assessing credibility, is consistency or lack of it in statements made by the witness whenaddressing the matter in the witness box and on other occasions.

It is critically important therefore that a trial judge deal with indicatedinconsistencies when assessing credibility of an only, or a critical, witness testifying against an accused. As Galligan J.A. observed in R.v. G. (M.) (1994), (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.) at p. 354-355: Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what thewitness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected.

They do not generally affect the credibility of the witness. This isparticularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the British

Columbia Court of Appeal in R. v. B. ( R.W. ) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260 : Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented. In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable.

This is particularly so when there is no supporting evidence on the central issue, which was the case here. [emphasis in original] [ 93 ] The main issue before me is the Complainant’s credibility and the reliability of his testimony. That is the live issue in this trial. [ 94 ] There were a number of inconsistencies in the Complainant’s actions and in his evidence.

They consist of the following: • The initial denials to parents, school officials and the police that anything untoward had happened, followed by an allegation that there had been sexual misconduct on the part of the Accused; • The Complainant testified, in his direct evidence, that he initiated a Snapchat conversation with the Accused in March, 2018. He indicated that this was augmented by telephone calls and text messages. The forensic examination of the Complainant’s and Accused’s telephones revealed only four text messages and two telephone calls – all postdating the alleged offence by several months.

This contradicts the Complainant’s assertion regarding cellphone calls and text messages prior to the alleged offence. The Complainant did not indicate to the police that the communications were primarily on Snapchat until he was confronted by the results of the forensic examination of the cellphones – which pointed to a very limited correspondence; • The Complainant indicated to the police that he did not save any images of the Accused on his cellphone.

However, in cross- examination it was established that he had, in fact, saved some of his Snapchat discussions, including images of the Accused, for some time before he deleted them. What the Complainant told the police was untrue. When it is established that a witness has lied to police, it diminishes his credibility; • The Complainant told Cst. Percey that the alleged offence took place in spring after the snow had melted. In direct examination he indicated that the incident took place at the end of the school year in June. Ordinarily a discrepancy of a few months would not be that significant.

However, when a witness embellishes by adding features such as the recent melting of the snow, one must wonder whether he is being altogether truthful. It is much better to say, “I don’t know”, than it is to make something up; • In a similar vein, in direct examination the Complainant said that they left the Accused’s vehicle in a subdivision off Pine Line and proceeded to an area of Outer Cove whose name he did not know. The Complainant is a resident of Outer Cove. He is very familiar with the area in which he lives, and admitted that he has extensively driven around the area.

In cross-examination he indicated that they had driven to Doran’s Lane in Outer Cove and parked on a side road. Why not say that he couldn’t remember the name of the road? Why indicate that it was an area of the town whose name he did not know? It’s perhaps a small point, but any time a witness is careless with the truth, it affects his credibility; • The Complainant indicated in his statement to the police that the Accused laid on the back seat of his car before they proceeded to have sexual intercourse.

In his direct evidence he did not mention the positioning of their bodies in the vehicle at all because he wasn’t questioned about it. However, in cross-examination he indicated that the Accused was “riding on top of him”. These are significant, serious inconsistencies that were not explained during re-direct examination when he agreed, when prompted, that they could have changed positions but that he couldn’t remember whether they had done so. Even young children are expected to have a reasonable recollection of what took place when alleging a sexual assault; • The Complainant told Cst.

Percey that the Accused had tattoos on her left leg. He admitted seeing pictures of the Accused, taken in front of a mirror that seemed to show the tattoos on her left leg. He admitted that these pictures may have been on the Accused’s cellphone (to which he had significant access). The Complainant testified that both he and the Accused were fully undressed in the car. He was behind the driver’s seat, she was behind the passenger’s seat. The alleged offence took place, according to the Complainant, during the day. The Complainant should have been able to see the Accused’s tattoos while they were in the car.

Yet he described the tattoos as being on the Accused’s left leg when the tattoos are, in fact, on her right leg. If he saw the tattoos in real life, which he told the police he did, he should have been able to identify that they were on her right leg. I find this inconsistency material; • The Complainant said he began hearing rumours about the Accused at the beginning of Grade XII. He failed to disclose, until he was cross-examined, that he was the author of those rumours. There is a material distinction between hearing rumours and instigating rumours.

The prevarication may be small, but it affects his credibility; and • The Complainant said that his last correspondence with the Accused was by text message in December, 2018 and that he met with the school’s Principal the following day. We know from the evidence led by others that the Accused was first contacted by Andrew Hickie at 10:05 a.m. on December 20, 2018. She could not have known, prior to that time, that the school or school district were looking into any allegations. Yet, the Complainant says that the Accused texted him between 7:30 a.m. and 9:00 a.m. on December 20, 2018 and asked if he had her back.

The Complainant’s allegation is unsupported by the forensic evidence. There is no record of a text message being sent by the Accused to the Complainant on December 20, 2018. And what text messages were sent, and what phone calls were

made, have all been explained as being rather innocuous. [ 95 ] A youthful witness might be excused for not knowing the location or timing of a sexual assault. However, a youthful witness should be able to give reasonably clear details about what happened. [ 96 ] The Complainant is not an overly youthful witness. He should be expected to have a reasonably good recollection of the events complained of. Unfortunately, his evidence contained too many inconsistencies, some very material, that cast doubt about the reliability, and the credibility, of his version of events.

CONCLUSION [ 97 ] The Crown did not prove its case beyond a reasonable doubt. [ 98 ] The charge against the Accused is dismissed. _____________________________ Vikas Khaladkar Justice