R. v. Wiseman, 2023 NLSC 97

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Wiseman , 2023 NLSC 97 Date : June 29, 202 3 Docket : 202101G5585 His Majesty The king v. Christopher Wiseman 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of the Criminal Code , information that may identify the person described in this judgment as the complainants shall not be published in any documents, broadcasted, or transmitted in any way. Edited Transcript of Oral Reasons for Judgment: Justice Sandra R. Chaytor Place of Hearing: St.

John’s, Newfoundland and Labrador Dates of Hearing: February 21, 22 and 24, 2023 March 24, 2023 and May 24, 2023 Date of Oral Judgment: June 28, 2023

Summary: The Accused was charged with sexual offences, uttering threats, and breaches of a recognizance. The Court held that inconsistencies in the main complainant’s evidence gave rise to a reasonable doubt. In reaching its decision, the Court commented upon the inadequacy of the police investigation. The Court rejected the Crown’s submission that the Accused’s post-offence conduct was evidence of consciousness of guilt.

Held: The Crown failed to establish beyond a reasonable doubt that the Accused committed the offences. The Accused was acquitted onall counts. Appearances: Deidre D. Badcock Appearing on behalf of the Crown Kenneth M. Hollett Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: 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. C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld.C.A.); R. v. B. (R.W.), [1993] 24 B.C.A.C. 1, 40 W.A.C. 1 (B.C.C.A.); R. v. Laboucan, 2010 SCC 12; R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Lemay, (SCC), [1952] 1 S.C.R. 232, affirmed in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and reaffirmed in R. v. Cook, (SCC), [1997] 1 S.C.R. 1113; R. v. V. (J.), (QCCA), [1994] 91 C.C.C. (3d) 284, 24 W.C.B. (2d) 629 (Que. C.A.); R. v. Jolivet, 2000 SCC 29; R. v. Ewanchuck, 1999 SCC 711; R. v.G.F., 2021 SCC 20 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Mental Health Care and Treatment Act, S.N.L. 2006 c.

M-9.1 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] The Accused stands charged with having committed eight offences contrary to the Criminal Code of Canada R.S.C. 1985, c.C-46 (the “Criminal Code”). The offences are comprised of three sexual offences against a 14 year old girl, C.Y. (one count of sexualassault contrary to

section 271; one count of sexual interference contrary to

section 151; and one count of invitation to sexual touchingcontrary to

section 152). There are also two counts of uttering threats contrary to

section 264.1: one against C.Y. and the other against herbrother, R.Y. The remaining three counts are failing to comply with a recognizance contrary to section 145(5)(

a) by: (1) consumingalcohol; (2) possessing, consuming or trafficking in an illegal drug or substance; and (3) failing to keep the peace and be of goodbehavior. [2] All of the offences arise out of circumstances alleged to have at the residence of C.T., the mother of the complainants. [3] The indictment, as filed, stated the date of the offences to be on or about February 17, 2020. Following the conclusion of thetestimony of C.Y. the Crown brought an application to amend the indictment with respect to the date of the alleged offences to conformto the evidence.

Having heard submissions from the parties, I allowed the indictment to be amended to state that the offences are allegedto have occurred on or about February 16, 2020 to February 19, 2020. [4] This is my decision on whether the Crown has proven beyond a reasonable doubt that the Accused committed any or all of theoffences as charged. disposition [5] I have decided that the Crown has not proven beyond a reasonable doubt that the Accused committed the offences. TheAccused is therefore acquitted on all counts. I will now explain why I have reached this decision. evidence Admissions pursuant to

Section 655 of the Criminal Code [6] At the beginning of the trial the following facts were admitted: 1. Date of the offence;

2. Jurisdiction; 3. Identity of the Accused as being Christopher Wiseman; 4. Age of the Complainant, C.Y. (having been born June 2005); 5. Voluntariness of statements by the Accused to the police on February 19, 2020 and February 21, 2020 for the purposes of cross- examination [1] ; and 6. Continuity of exhibits. Recognizance [ 7 ] A recognizance given by the Accused dated March 19, 2019, was entered into evidence by consent.

Its conditions included that the Accused was not to possess or consume alcohol; not to possess, consume or traffic in any illegal drug or substance; and to keep the peace and be of good behavior. Testimony [ 8 ] The Crown called evidence from a number of police officers including those who took statements from C.Y., those who attended at C.T.’s residence, and those involved with the collection and preservation of exhibits. [ 9 ] C.Y. also testified. She did so via closed circuit television from outside the courtroom and in the company of a support person.

R.Y. was not called to give evidence. [ 10 ] The Defence called two witnesses: Valerie Blackmore, a forensic scientist and Doreen Wiseman, the Accused’s mother. The Accused, as is his right, did not testify. [ 11 ] I will now summarize the evidence of the witnesses. (

a) Crown Witnesses Cst. Nicole Percey [ 12 ] At the time of the alleged offences, Cst. Nicole Percey was a member of the Royal Newfoundland Constabulary’s (the “RNC”) Child Abuse and Sexual Assault Unit. [ 13 ] On February 20, 2020, Cst. Percey was assigned the investigation into this matter. The same day as her assignment, Cst. Percey attempted, without success, to reach the complainants. Cst. Percey found contact with the family to be very difficult throughout the investigation. [ 14 ] On February 21, 2020, Cst. Percey was notified by child protection social workers that they were involved with the family.

On the same date, Cst. Percey interviewed and took statements from R.Y., C.Y. and C.T. [ 15 ] C.Y.’s statement was audio and video recorded. C.Y. was cooperative in giving her statement but Cst. Percey found that it was a difficult statement to take in that C.Y. had trouble providing information in a chronological order. C.Y. also seemed distressed. [ 16 ] Cst. Percey learned through the course of the interviews that there was a video alleged to be on C.Y.’s cellular telephone of conduct between C.Y, R.Y, and the Accused. Cst.

Percey clarified on cross-examination that she understood this to be a video of the sexual assault. Before C.Y. left the police station after providing her statement, Cst. Percey spoke to C.Y. about providing the video. C.Y. acknowledged that she would send the video to Cst. Percey. C.Y. did not provide the video. C.Y. had her phone with her while at the police station but Cst. Percey did not ask to see the video nor did the police take any steps, at any time, to retrieve the video. [ 17 ] C.Y. and R.Y. told Cst.

Percey in their statements that the Accused told them he was going to get custody of them. [ 18 ] On February 21, 2020, a warrant was executed to remove C.Y. and her siblings from her mother’s residence. C.Y. ran away. Once that warrant was executed, C.Y. was no longer cooperative in the investigation. [ 19 ] On February 24, 2020, Cst. Percey attempted to contact C.Y. to get her consent to take DNA samples from her. Items had been seized from the scene including bedsheets and clothing that the police wished to submit for DNA analysis.

It is normal procedure to obtain DNA samples from the complainant for comparison purposes. [ 20 ] Numerous attempts were made by the police to obtain DNA samples from C.Y. but she was not cooperative. At least two

appointments were made for this purpose but they were either cancelled by C.Y. or she did not show up. Cst. Percey did not obtain a warrant to get C.Y.’s DNA sample as she did not think it was appropriate to force C.Y. to do anything if she was not willing to cooperate. [ 21 ] The police did not request the Accused to provide a DNA sample when he was interviewed or at any other time in the investigation.

This was so even though prior to the Accused giving his police statement, the police had seized exhibits from C.T.’s residence for the purpose of DNA analysis. [ 22 ] In July 2022, there was a production order obtained to get the Accused’s medical records. However, the police did not seek to compel production of a DNA sample from the Accused. [ 23 ] Cst. Percey believed the alleged offences occurred on February 17, 2020 or into the morning of February 18, 2020. In the fall of 2022, Cst. Percey was advised of potential alibi witnesses.

Each person identified was contacted but they were not able to substantiate an alibi. [ 24 ] Cst. Percey did not attend at C.T.’s residence at any time during the investigation. No photographs were taken inside the residence or of the scene. The Complainant: C.Y. – Evidence-in-Chief [ 25 ] C.Y. was born in 2005. At the time she testified she was 17 years old. She was 14 years old at the time of the alleged offences. C.Y. is in grade 11 at “district school” which she said is different from regular school. C.Y., R.Y., and other siblings, reside with their mother. [ 26 ] C.Y.’s mother and the Accused were friends.

On the night of the offences the Accused came to their house and was having drinks with her mother. Her mother went to bed. Before doing so, her mother said the Accused could stay over because he had nowhere else to go. He had a bag of clothes with him. [ 27 ] After their mother went to bed, C.Y. was in her bedroom and R.Y. was in his bedroom. The Accused was with R.Y. They were both drinking. All three bedrooms are on the third floor of the house. There is a bathroom also on that floor. [ 28 ] C.Y. was asked to give her account of what happened.

She testified that at some point in the evening, she did not know what time, she went to R.Y.’s room because R.Y. said something happened to him. C.Y. didn’t believe it. Then R.Y. went to the bathroom. She and the Accused were then alone in R.Y.’s bedroom. The Accused shut the door of R.Y.’s bedroom. C.Y. said, “That’s when I got touched and he started ‘making out’ with me.” [ 29 ] Before this happened, the three of them were in her bedroom at some point. The Accused crushed a pill that C.Y. called a “blue canoe” and gave it to her and R.Y. They sniffed it.

She felt fine afterwards. [ 30 ] C.Y. was asked what happened next. She reiterated that they were in R.Y.’s bedroom and that R.Y. went to the bathroom. The Accused shut the bedroom door. The Accused grabbed her by the throat and started making out with her. She tried to push him off. He said if she told her mom he would kill her because her mom would kill him. Then the Accused started touching her “down there.” When asked to explain this, C.Y. said the Accused put his fingers inside her vagina.

C.Y. also explained that “making out” meant the Accused was kissing her and putting his tongue in her mouth. [ 31 ] C.Y. started to cry briefly at this point in her evidence. [ 32 ] C.Y. said the assault lasted less than three minutes. C.Y. pushed him off her and went and got R.Y. C.Y. testified that, “We cried to each other.” On further questioning about this, C.Y. said she went to the bathroom but then says she did not go in the bathroom.

Rather, R.Y. came back in the bedroom and she nudged his arm and told him to “come here.” [ 33 ] When the Accused was kissing and touching her, C.Y. said she kept telling him to get off her. The Accused said, “Please.” She said, “No.” When the Accused said he was going to kill her, she did not say a word. [ 34 ] C.Y. was asked about the timing of when the Accused said he was going to kill her. She replied, “After he did it.” As he was touching her, he said her mom would kill him and that he would kill us.

After it happened, the Accused told her if she tried to report it, he would sit in room with cops and tell them a completely different story. [ 35 ] When R.Y. came back into the bedroom, C.Y. said that the Accused started telling them about how he was raped as a child. This made her feel confused. [ 36 ] When asked what happened next, C.Y. testified that R.Y. has bunkbeds and the Accused laid down on the bottom bunk. The Accused grabbed her and made her lie down with him. She laid there with him until he fell asleep so she could get up.

When the Accused fell asleep she got up. [ 37 ] After getting up, C.Y. and R.Y. talked. Then one to two hours later their mother got up and they got ready for school. They did not tell their mother what happened because the Accused had threatened they would be killed. [ 38 ] C.Y.’s older brother found out what happened and he confronted the Accused and told their mother. C.T. then confronted the Accused. The Accused then got a knife, or something, and slit his neck or wrist. [ 39 ] C.Y. was in her bedroom when her mother confronted the Accused. She heard screaming downstairs so she went down.

The Accused pushed her mother on the floor. Her mother pushed him away and told him to get out of the house. Her mother called the cops. [ 40 ] C.Y. did not know the exact day the assault occurred. She was asked how much time passed between the sexual assault until the confrontation between the Accused and her mother. C.Y. testified that her mother found out “the day after” the night it happened. The

police showed up about 10 minutes after her mother called them that night. C.Y. spoke to the police that night and gave a statement. [ 41 ] At this point in C.Y.’s evidence, the Crown circled back and asked C.Y. further questions about the sexual assault. It was put to C.Y. that she had said the Accused kissed her with his mouth and touched her with his fingers. She was then specifically asked whether he used any other part of his body to touch her.

She replied, “No.” She paused and then said that the Accused was trying “to take it that far” but she said, “no” and was thankful it never happened. [ 42 ] C.Y. was further asked what she meant by “he tried to take it that far”. C.Y. replied that he “ tried to put his dick inside me.” C.Y. said this happened at the time the Accused made her lie down with him. R.Y. was present. C.Y. testified she was, “like, do you not see him? Tell him to get off me, like, please.” [ 43 ] C.Y. told the Accused to stop and get off her. They were on the bottom bunk bed. The Accused had his arm around her so she couldn’t get up.

They were not facing each other. He was behind her. She was wearing boxers, a thong and a shirt. The Accused tried to take down her boxers and to take “his thing out.” She clarified this meant “his dick”. She said the Accused was rubbing “his dick” off her back. This lasted a second. C.Y. said she was scared for her life. [ 44 ] C.Y. was then asked further questions about the threats. She testified at this point that the Accused said that if she said anything to the cops, to her mother or any of her brothers, even R.Y., they would be killed.

This happened when R.Y. went to the bathroom, after the Accused touched her. [ 45 ] C.Y. was asked whether she heard him threaten anyone other than herself and she replied, “No.” She was then asked who the threats were directed at and she said that he threatened her and R.Y. This happened after the Accused had touched her and R.Y. had returned to the bedroom. The Accused looked at them both and told them if they said anything, they would be dead. [ 46 ] She remembered attending at the police station. The police told her to provide all the details. They did not ask her to do anything else.

The Complainant: C.Y. - Cross-examination: [ 47 ] C.Y. acknowledged that she had been in child protection for periods of her life. She was asked whether on February 19, 2020 before the police came to their house, the Accused threatened to call child protection. She did not remember this. [ 48 ] It was put to C.Y. that in both her police statements she said there was a two-day gap between when the alleged assault occurred and the night the police came.

C.Y. reiterated what she said in her direct evidence that there was only one day between the date of the alleged offences and the date the police arrived. [ 49 ] C.Y. agreed that if the police came Wednesday, February 19, 2020 then the offences happened Tuesday night. She did not recall telling the police in her statement of February 21, 2020 that the Accused came to their house on Monday. [ 50 ] It was put to C.Y. that in the statement she gave to Cst. Cole in the police car the night of February 19, 2020 she said, it was “ a couple of nights ago” that the Accused slept over.

C.Y. was not sure why she said that and maintained that the Accused only slept at her house one night and that was the night before the police came. [ 51 ] It was further put to C.Y. that in her statement she said that the Accused “came back” to their house that evening and that her mother had found out that day what happened. She said she did not remember the Accused leaving the house. She maintained that her mother found out the night the police came. It was that night after they had eaten pizza. [ 52 ] In her statement to Cst.

Percey on February 21, 2020, it was put to C.Y. that similar to her other statement, she said that two days after the assault, the Accused “came back” to their house and was drinking. This was the night the police was called. She could not explain why she would say this except she noted it was the first time something like this had happened to her and she mixed up the timing. [ 53 ] C.Y. acknowledged she was telling the truth to the police in her statements and probably remembered things better at that time than at the time of testifying.

Nonetheless, she maintained that the Accused only slept at their house one night and that was the night of the alleged offences. The next night the police arrived. [ 54 ] C.Y. was asked a series of questions about an alleged theft of drugs from their house. She recalled that on February 19, 2020 her mother made a complaint that someone had stolen Ritalin from their house. C.Y. stated there were a bunch of pills missing, not just Ritalin. C.Y. admitted she was probably the person who alleged that the Accused was responsible for the pill theft.

This was because she heard him in the cabinet in the downstairs bathroom. She denied that she or her siblings took the pills. C.Y. in answering this line of questioning then C.Y. said she did not know where the pills were located. [ 55 ] C.Y. did not tell Cst. Cole about the pill theft when she gave her statement. Her concern at that point was the sexual assault.

C.Y. did not recall the police coming to her house to investigate the pill theft the day after the Accused was taken away by the police. [ 56 ] C.Y. was not present for a FaceTime call between her mother and Doreen Wiseman the night the police came to their house. [ 57 ] C.Y. was asked about the confrontation between her mother and the Accused that she referenced in her direct evidence. It was put to her that her mother punched the Accused in the face. She replied, “No.” C.Y. then described the Accused “going at” her mother, pushing her to the floor and her mother pushing him back.

She added, “That’s when he cut his wrist or neck.” [ 58 ] It was put to C.Y. that in the statement she gave to Cst. Percey she said her mother “came up and hit him.” C.Y. acknowledged she saw this happen. Her mother punched the Accused because he had pushed her on the floor. C.Y. was asked where her mother hit the Accused and she replied, “In the face.”

[ 59 ] C.Y. repeatedly said the Accused was drinking the night the police came to take him. He was drunk to the point of not being able to walk a straight line. Initially C.Y. testified that the Accused was drinking and sniffing prescriptions that night but changed her evidence and said he was only drinking the night the police came – not doing drugs. The Accused was drinking and doing drugs the night of the assaults.

C.Y. added that her mother did not know about the drugs or she would have kicked the Accused out of the house. [ 60 ] When the police arrived at their house, C.Y. took them to R.Y.’s bedroom and gave them clothing and bedsheets. There were dents in her bedroom wall where the Accused had thrown a chair. C.Y. thinks she showed this to the police. [ 61 ] C.Y. believed she recalled being asked to provide a DNA sample. She did not recall however, the police asking numerous times or that she did not show up for scheduled appointments for this purpose.

She testified she did not receive a call about attending an appointment. If she had, she would have went. At that time, C.Y. said she was living in a group home and had “a lot of stuff happening.” [ 62 ] C.Y. was questioned about the video referenced by Cst. Percey in her evidence. C.Y. recalled having a discussion with Cst. Percey after her recorded video statement. She did not recall however telling Cst. Percey that she had a video of the sexual assault on her cellphone. She said her brother had a picture of her sitting on the Accused’s lap but there was no video.

Upon further questioning when it was put to C.Y. that it had been suggested there was a video of the assault, she said she did not know. She probably did have it on an old phone but she now has a new phone. She added that if she had a video she would have given it to the cops. [ 63 ] C.Y. was aware the police seized a condom from the scene. She did not know whom it was from but thought the Accused threw it out the bedroom window the night of the alleged assault. C.Y. denied she or R.Y. threw anything out the window. [ 64 ] R.Y.’s bedroom shares a wall with her mother’s bedroom.

There was a hole in that wall because R.Y. put a TV through it and then punched it. C.Y. was referred to a portion of her police statement in which she said that the Accused was screaming while in R.Y.’s bedroom and that with the hole in the wall, her mother could hear everything going on. She did not remember saying this. C.Y. said there was no screaming. It was literally quiet. On further questioning, she said she did not remember if there was any screaming happening at the time. [ 65 ] C.Y. denied that the sexual assault allegations were made up.

She denied that she was angry with the Accused because she thought he stole the drugs or because he was going to call child protection. Cst. Andrew Crocker [ 66 ] At the time of these alleged offences, Cst. Crocker was a member of the RNC street patrol service. On February 19, 2020 at 10:30 p.m . he and Cst. Lauralee Lynch, were called to a domestic disturbance at C.T.’s residence. [ 67 ] Cst. Crocker was wearing his full police uniform when he arrived. Upon arrival, he observed a male, in an erratic state, yelling and screaming, outside the residence. The male was later identified as the Accused. [ 68 ] Cst.

Crocker spoke with the Accused who told him he wanted to kill himself and that he had cut himself with a broken dinner plate. There was a cut on the Accused’s neck area which Cst. Crocker thought looked superficial. Cst. Crocker believed there was “a mental tragedy” happening. He knew the Accused wanted to harm himself. Cst. Crocker’s main focus was the Accused’s mental health and safety. [ 69 ] Cst. Crocker detained the Accused under the Mental Health Care and Treatment Act, S.N.L. 2006 c.

M-9.1 and placed him in the back of the police car with the intention of conveying him to the Waterford Hospital to be seen at the psychiatric assessment unit. Cst. Lynch stayed with the Accused in the car. [ 70 ] The scene was chaotic with several people talking at once and shouting. Cst. Crocker was familiar with the people at the scene including C.T., C.Y. and R.Y. He knew C.T. and her children through various calls over the years. [ 71 ] Cst. Crocker spoke with C.T. who he described as the complainant for the call. C.T. told Cst. Crocker that the Accused needed to go to the psychiatric assessment unit.

C.T. was shouting for them to take the Accused away - that he needed help. [ 72 ] There were more people there than officers. Based on what the Accused said, safety was the number one concern. Cst. Crocker felt if he removed the Accused from the scene, it would calm the situation for the officers arriving after them. [ 73 ] Altogether, Cst. Crocker was at C.T.’s residence for approximately 15 minutes. During that time, he did not recall anyone accusing the Accused of stealing medication. [ 74 ] The Accused told Cst. Crocker he had consumed 14 beer and 16 to 18 sleeping pills.

Given this, he conveyed the Accused to St. Clare’s Hospital to be medically cleared before bringing him to the Waterford Hospital. Cst. Crocker did not believe the Accused had consumed that much beer. He did not detect any alcohol odor. He is quite familiar with people being impaired as he was a breathalyzer technician for many years. He would disagree if someone suggested the Accused was drunk. The Accused may have been under the influence of something else but it was not alcohol. [ 75 ] The Accused was medically cleared from St. Clare’s Hospital around 1 a.m. Cst.

Crocker was informed by a nurse that the Accused’s blood alcohol level was zero. Lack of alcohol was consistent with his observations. He did not receive the results of whether the Accused had sleeping pills in his system. [ 76 ] Cst. Crocker conveyed the Accused to the psychiatric assessment unit at the Waterford Hospital. The Accused was admitted. Cst. Lauralee Lynch [ 77 ] Cst. Laurelee Lynch is a member of the RNC street patrol service. On February 19, 2020, she and Cst. Andrew Crocker were

called to a domestic dispute at C.T.’s residence. She arrived wearing her full police uniform which included her duty vest with the word “police” written on it. [ 78 ] Upon arrival, Cst. Lynch observed a male outside in an agitated state, yelling and screaming. He was later identified as the Accused. The Accused made suicidal remarks. Because of those comments, they detained the Accused, secured him in the police cruiser and addressed his mental health issues. [ 79 ] The Accused was not making a lot of sense. Cst. Lynch thought he was intoxicated.

She did not smell alcohol on him but it was possible he was impaired by drugs because he said he had taken drugs. [ 80 ] There was a small cut on the Accused in the area of his neck. She did not recall any active bleeding. They conveyed him to St. Clare’s Hospital where he was medically cleared. Cst. Jessica Cole [ 81 ] Cst. Jessica Cole is a member of the RNC street patrol service. On February 19, 2020 at 11:41 p.m. she was dispatched to C.T.’s residence. She arrived by herself at 11:46 p.m. . [ 82 ] Cst.

Cole entered C.T.’s residence where she encountered a number of people speaking over one another, arguing, and cursing at one another. C.Y., R.Y. and another person named Lisa were there. Cst. Cole was not able to make much sense of what was going on. Lisa made a comment that helped her understand that the argument was about something that had happened a previous night. [ 83 ] C.Y. agreed to step away to explain to Cst. Cole what had happened. They went to the patrol vehicle so she could speak to C.Y.in a controlled environment. [ 84 ] At 11:54 p.m., Cst. Cole took a written statement from C.Y.

In it, C.Y. said the Accused had been staying at the house previously. The night he stayed, he went in the bedroom with her and R.Y. and allegations were made against the Accused of a sexual nature involving both youth. [ 85 ] Cst. Cole decided to have someone from criminal investigation interview C.Y. so she did not complete the interview of C.Y. that night. [ 86 ] Due to the nature of the allegations, Cst. Cole contacted Cst. Michael Hunt. Cst. Hunt arrived at C.T.’s residence and assisted in gathering evidence. [ 87 ] R.Y. and C.Y. brought Cst. Cole and Cst. Hunt to the bedrooms.

The police officers collected bedsheets, pillows and clothing of both R.Y and C.Y. from the night of the alleged offences. Cst. Cole was not directed to other observations in the bedroom. [ 88 ] Cst. Cole and Cst. Hunt also collected items that were outside belonging to the Accused. This included a garbage bag and a duffle bag on the front steps of the house. They also collected a pair of gray boxers located outside the residence below the bedroom window. Cst.

Cole did not observe a condom at that time. [ 89 ] The items collected were brought to the RNC headquarters and given to the identification unit for appropriate storage. Cst. Michael Hunt [ 90 ] Cst. Michael Hunt is a member of the RNC street patrol service. Late in the evening on February 19, 2020, he was dispatched to C.T.’s residence. He arrived early in the morning of February 20, 2020 at 19 minutes after midnight. [ 91 ] Cst. Hunt did not know the nature of the complaint when he arrived or the totality of the situation until he was on scene. Cst. Cole briefed him on what was occurring.

C.T., R.Y. and C.Y. were in the house when he arrived. They were “worked up”. [ 92 ] Cst. Hunt took a written statement from C.T. She was emotional. Allegations were made of a sexual assault on youths. [ 93 ] Approximately 15 to 20 minutes after he arrived, C.Y. told him that the Accused had fingered her; felt her up; and made out with her. She also alleged he choked her and threw a chair at the wall. C.Y. spoke in a matter-of-fact and straightforward manner about what happened. [ 94 ] Cst. Hunt went to R.Y.’s bedroom from where he seized a fitted bedsheet, pillows, and a sleeping bag.

He also seized clothing that C.Y. provided to him comprised of a blue stripe tube top and blue boxers with ducks imprinted on them. He was informed that both items had been washed. C.Y. also gave him a pair of black shorts. C.Y. was not sure if those had been washed. R.Y. also provided clothing. [ 95 ] Cst. Hunt found a black garbage bag and a gym bag containing clothes on the front steps of the house. He also found a pair of gray underwear outside the house underneath the bedroom window. Cst. Hunt was informed that these underwear may have been worn by the Accused during the alleged assault.

He seized the underwear. [ 96 ] Cst. Hunt was told by someone in the household that the children may have thrown items out the bedroom window. He does not recall who told him this but when R.Y. was telling him what had happened, R.Y. was putting the screen back in his bedroom window. The screen would need to be removed for items to be thrown out the window. R.Y.’s bedroom is on the front of the house making it plausible the underwear were thrown out that window. [ 97 ] The items seized were put in exhibit bags and brought to RNC headquarters and passed over to forensic identification services personnel.

[ 98 ] Cst. Hunt returned to C.T.’s residence at 3:07 a.m. on February 20, 2020. His purpose in re-attending was to tell the occupants that if the Accused returned they should call the police. [ 99 ] The ground outside the residence had not been searched during his first visit so he took the opportunity to look around. He discovered a condom lodged in the snow outside R.Y.’s bedroom window in the same area he had earlier found the gray underwear.

He seized the condom as an exhibit and ensured it was not altered from how he found it. [ 100 ] He did not recall being informed during either of his visits to C.T.’s residence of a pill theft. [ 101 ] No photos were taken by him of the interior of C.T.’s residence. Cst. Stacy Sweetland [ 102 ] At the time of the alleged offences, Cst. Stacy Sweetland was a member of the RNC forensic identification section. [ 103 ] On February 20, 2020, she assumed responsibility for continuity of various exhibits gathered in relation to this matter. Some exhibits were wet and required drying. [ 104 ] Cst.

Sweetland sent a list comprised of eight exhibit items to the national forensic laboratory in Ottawa for its review and determination as to whether any of the exhibits could be accepted for DNA analysis. It was Cst Sweetland’s understanding that the forensic lab accepts the exhibits that it believes to be of the most evidentiary value. [ 105 ] In this case, the lab only accepted one exhibit for testing. It was the pair of blue boxers with ducks believed to belong to C.Y. Cst.

Sweetland was not given any reason by the lab as to why it did not accept the condom or any other of the exhibits for testing. [ 106 ] The results of the testing on the boxers revealed a DNA profile consistent with originating from at least three individuals at least one of whom was a male. Cst. Sweetland felt that based on this result, there were no further investigative steps she could take with respect to this exhibit [ 107 ] Cst.

Sweetland explained that normally when the police send exhibits to the lab for DNA analysis they also send DNA samples of the complainants so that their DNA can be eliminated in the analysis. In this case, this did not happen. Cst. Sweetland had numerous conversations with Cst. Percey in an effort to get those samples. She understood that Cst. Percey also made numerous requests to get the samples. C.Y. and R.Y. were uncooperative with providing their DNA samples. Consequently, there was nothing to which the lab could compare the results. [ 108 ] Cst.

Sweetland further noted that often in cases of this nature, a warrant is sought for the Accused’s DNA but this was not done in this case. The police also did not request the Accused to provide a DNA sample. [ 109 ] Cst. Sweetland did not visit C.T.’s residence at any point. Her duties often include attending scenes and taking photographs. That was not requested of her in this case. (

b) Defence Witnesses Doreen Wiseman [ 110 ] Doreen Wiseman is the Accused’s mother. At the time of the alleged events, she was residing in Ontario. On Thursday, February 20, 2020, her son called her from a detox recovery center. [ 111 ] The night before, on February 19, 2020 at approximately 9 p.m. Newfoundland time, the Accused contacted her via FaceTime. He said he was at C.T.’s house. He described C.T. as the person who had saved his life two weeks before when he had overdosed. C.T. came on the screen and the Accused introduced them to one another. Ms. Wiseman thanked C.T. for helping her son.

C.T. replied that she would do anything for him as he was like a son to her. [ 112 ] During the FaceTime call, the Accused was sitting on a loveseat and C.T. was stood next to him leaning over him. On the other side of the Accused was a girl with short black hair who was taking pictures with her cell phone. Ms. Wismean did not know the identity of the girl. [ 113 ] At the time of the FaceTime call, the Accused and C.T. were getting along. C.T. was having a beer and they were laughing. The call lasted about ten minutes. [ 114 ] Ms. Wiseman described C.T.’s residence as being strewn with clothes.

Her son explained that it was his clothes. C.T. was helping him wash and pack his clothes because he was going to rehab in the morning. [ 115 ] On February 20, 2020, Ms. Wiseman was informed by friends that C.T. had posted a picture on C.T.’s FaceBook page of the Accused along with a message that he had “raped her two children”. The picture showed the Accused sitting on C.T.’s loveseat wearing boxer shorts. [ 116 ] Ms. Wiseman went to C.T.’s Facebook page and saw the picture. She sent C.T. a message stating: “What the hell do you have posted on Facebook?

You know damn well that Chris didn’t do anything to your children.” [ 117 ] On cross-examination, Ms. Wiseman admitted she had never been in C.T.’s residence and that she did not interact with the children during the FaceTime call. Valerie Blackmore

[ 118 ] Valerie Blackmore is a forensic scientist and president of Wyndham Forensic Group Inc. (“Wyndham”). Wyndham is an accredited forensic laboratory based in Guelph, Ontario. [ 119 ] Ms. Blackmore was qualified to give opinion evidence in forensic body fluid identification, forensic DNA analysis/interpretation, statistical analysis as it pertains to forensic DNA, forensic quality management systems, and the transfer and persistence of biological evidence. A report authored by Ms. Blackmore dated January 3, 2023 was entered into evidence. [ 120 ] Ms.

Blackmore was retained by the Accused to carry out DNA analysis with respect to the condom found by the police outside the bedroom window where the alleged sexual assault occurred. [ 121 ] Through her analysis, Ms. Blackmore concluded that a swab of the inside of the condom found a single source male profile. It was compared to a blood sample of the Accused. The Accused was excluded as the source of the male profile. [ 122 ] Ms. Blackmore noted that the swab sample from the condom was from the “inside” of the condom as received by her and based on how it was tied.

The inside does not necessarily mean how it may have been used. Only one side was swabbed for DNA analysis. She cannot say which was the inside from how it was manufactured or how it was used. [ 123 ] If other DNA samples had been sent for testing, Ms.

Blackmore testified those could have compared to the DNA profiles generated. the crown’s position [ 124 ] The Crown submitted that C.Y.’s evidence is sufficient to establish all the elements of the offences charged. [ 125 ] With respect to any inconsistencies in C.Y.’s evidence, the Crown contended these revolved around peripheral matters or dates. [ 126 ] The Crown disagreed that all of the issues raised by the Defence were inconsistencies.

Rather, the Crown submitted that some of the questioning of C.Y. was imprecise or confusing and that this could account for what is being perceived as inconsistencies in her evidence. C.Y. giving more fulsome answers once she realizes what is being asked of her, is not an inconsistency. [ 127 ] Overall, the Crown submitted that C.Y.’s manner of testifying was consistent with being a youthful witness.

She cannot be held to the same level of exactitude as that of an adult witness [ 128 ] The Crown further submitted that the Accused’s post-offence conduct, specifically his actions at the time the police arrived at C.T.’s residence, is evidence of consciousness of guilt. The Crown asked the Court to draw such an inference. the defence position [ 129 ] The Defence submitted that the domestic disturbance that erupted the evening the police was called concerned the allegation that the Accused had stolen pills.

It was not about C.T. having learned of a sexual assault. [ 130 ] The Defence theory was that the allegations against the Accused were fabricated by C.Y. and R.Y., unsophisticated young people, in an effort to have the Accused removed from their home. Someone had allegedly stolen pills. Someone brought a condom into the situation that contained another man’s DNA.

The Defence contended that C.Y.’s actions in not cooperating with providing a DNA sample or producing the alleged video were efforts by her to avoid a more fulsome investigation. [ 131 ] Even if the Court did not accept the theory of fabrication, the Defence submitted that the multitude of inconsistencies and changes in C.Y.’s evidence was such that her credibility was suspect to the point that a reasonable doubt arises as to the guilt of the Accused. [ 132 ] The Defence further asserted that the police investigation was inadequate and that although corroboration is not required, there was little, if any, corroborating evidence collected by the police to compensate for the weaknesses in C.Y.’s evidence.

In particular, it noted the lack of DNA evidence; no steps being taken to obtain the alleged video; the investigating officer not attending C.T.’s residence; and no photographs being taken of the scene. [ 133 ] The Defence submitted that along with the inadequate police investigation, there were other gaps in the evidence that could have been filled by witnesses that the Crown did not call. R.Y. and C.T. were in the house at the time of the alleged offences and although the police obtained statements from them, they were not called to testify.

All of this, the Defence submitted, gives rise to a reasonable doubt. the law The Presumption of Innocence and the Burden of Proof [ 134 ] A fundamental hallmark of our criminal justice system is the principle of the presumption of innocence. Every individual who is charged with a criminal offence is presumed to be innocent unless and until that person is proven guilty beyond a reasonable doubt. [ 135 ] The presumption of innocence means the Accused has nothing to prove. An accused person is never obligated to testify and has the absolute right to remain silent.

The burden always remains with the Crown to prove each element of the offences charged beyond a reasonable doubt. [ 136 ] In R. v. Starr , 2000 SCC 40 , at paragraph 242 , the Supreme Court pointed out that the Crown’s burden of proof beyond a reasonable doubt lies “much closer to absolute certainty than to proof on a balance of probabilities”. [ 137 ] The question therefore before me is not whether I believed the events alleged by C.Y. probably happened; rather whether the Crown established each element of the offences charged beyond a reasonable doubt.

Assessing Credibility and Reliability [138] Fact-finding requires that I assess both reliability and credibility. Reliability concerns the accuracy of a witness’s evidence. Itinvolves an assessment of the witness’s capacity to observe, recall and recount the events in issue. Credibility is different. It involves anassessment of the witness’s believability and truthfulness. [139] Special considerations arise in assessing the credibility of child witnesses and the reliability of their evidence. I am required toapproach the evidence tendered by a young person differently than I would if she were an adult.

However, that approach and the degreeto which I am to exercise some latitude in assessing the evidence is modified by the witness’ age and level of maturity at the time of thealleged offence. [140] In R .v. B. (G.), (SCC), [1990] 2 S.C.R. 30, at paragraph 56, Wilson J. was commenting on the concurringreasons of Wakling J.A. in the appellate court decision when she wrote: …[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. [141] In R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at paragraphs 24 and 25, McLachlin J., (as she then was) noted thatthe law affecting the evidence of children no longer requires that the testimony of children be corroborated.

What is required is thatjudges be sensitive to the peculiar perspectives of children and to refrain from applying adult tests for credibility to the evidence ofchildren. [142] McLachlin J. went on to state at paragraph 26 in R. v.

W.(R.) that the changes in how courts are to consider the evidence ofchildren does not mean that the evidence of children in criminal cases is not subject to the same standard of proof as that of adultwitnesses: 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. [143] In R. v. C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld.

C.A.), at paragraph 23, inaddressing the effect of inconsistencies upon the credibility of a crucial witness, our Court of Appeal cited with approval the decision ofRowles J.A. in R. v. B. (R.W.), [1993] 24 B.C.A.C. 1, 40 W.A.C. 1 (B.C.C.A.) at paragraphs 28 and 29: 28 ...

Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that thecredibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented. 29 … While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies maybecome quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’ evidence.

There is norule 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 theinconsistencies in order to assess whether the witness’ evidence is reliable. This is particularly so when there is no supporting evidenceon the central issue, which was the case here. [144] With those principles in mind, I will now assess the evidence. Assessment of the Evidence Overall Assessment of C.Y.’s Credibility and Reliability of her Evidence [145] C.Y. was 14 years of age at the time of the alleged offences.

At the time of testifying, she was 17 years of age. She is in grade 11at “district school” which is different from “regular school”. Although what that means and why she attends a different type of schoolwas not explained. I have no evidence that it is due to any intellectual, emotional, cognitive, or maturity issue. [146] Cst. Percey described C.Y. having difficulty giving a chronological account during her statement taking on February 20, 2020.Three years later at the time of testifying, I did not find sequencing of events to be a significant issue for C.Y.

If it is an issue for her, itmay have been compensated for by the Crown posing to C.Y. a series of “what happened next” questions. I did not have difficultyfollowing C.Y’s evidence.

[ 147 ] I found C.Y. to display a degree of maturity appropriate to her age. C.Y. did not appear to be intimidated by the process. For example, she did not hesitate on cross-examination to state when she disagreed with a version of events being put to her by Defence counsel.

She also asked for clarification at times when she did not understand the question or suggestion being put to her. [ 148 ] C.Y. was a crucial witness not only for the counts in which she is the complainant but also for the uttering threats charge involving R.Y., as he was not called to testify. [ 149 ] There were a number of inconsistencies internal to C.Y.’s own evidence, inconsistencies between her evidence and that of her police statements or between her evidence and the testimony of other witnesses.

Some of these were minor inconsistencies and understandable particularly when dealing with a youthful witness. [ 150 ] When faced with inconsistencies in a crucial witness’ testimony, there is no measuring device that I am to apply to determine the point at which the inconsistencies are of sufficient quantity or type to give rise to a reasonable doubt.

While it is true that minor inconsistencies may not unduly diminish the reliability of C.Y.’s evidence, particularly with respect to peripheral matters, a series of inconsistencies may become significant and cause me to have a reasonable doubt about the reliability of her evidence. [ 151 ] I found that parts of C.Y.’s evidence evolved or changed at times when she thought the circumstances could reflect poorly on her mother. This may be understandable given that she was removed from her mother’s residence shortly after the complaint regarding the alleged offences was made to the police.

However, the reliability of her evidence is affected when she alters her evidence for any purpose. C.Y.’s testimony was critical to the Crown’s case and I must be able to rely upon her to tell the truth unimpeded by any reason to do otherwise no matter how understandable that reason may be.

The charges against the Accused are serious and the proof of these charges beyond a reasonable doubt depended upon the reliability of C.Y.’s testimony as there was no supporting evidence on the central issues. [ 152 ] I have taken into consideration that inconsistencies in a youth’s evidence may be less significant than for adult witnesses. C.Y.’s evidence however contained several inconsistencies that cast doubt about the reliability of her evidence.

Cumulatively these discrepancies and weaknesses in her evidence were sufficient to raise a reasonable doubt. [ 153 ] Proof beyond a reasonable doubt is a high standard. I am left with a reasonable doubt. [ 154 ] I will review the issues that gave rise to my doubt in the context of assessing the totality of the evidence. In doing so, I will also discuss issues raised by the Defence that I did not find impacted the reliability of C.Y.’s evidence. C.Y.’s Evidence on the Timing of the Offences [ 155 ] C.Y. testified she did not know the exact day the offences occurred.

However, she testified that the Accused only slept at their house one evening and that was the night of the alleged offences. She further stated that the Accused did not leave her house after the offences and return the next day. She testified that the evening following the alleged offences, after they had pizza, her mother found out about the assault. This is when she says the police were called and arrived shortly thereafter. This was the evening of Wednesday, February 19, 2020. [ 156 ] In the statement C.Y. gave that night to Cst.

Cole, C.Y. stated that the assault happened “a couple of nights ago” and that the Accused “came back” to the house the night she gave her statement. She stated her mom had found out that day what had happened. Similarly, in her statement given on February 21, 2020 she said the Accused came to her house two days after the alleged offences. [ 157 ] C.Y. did not remember saying these things in her police statements. She did not recall the Accused having left their house and returning the night the police came.

She testified that her mother would never let the Accused back in the house had she known. [ 158 ] The Crown contended that this is not necessarily an inconsistency in that it may depend on C.Y.’s definition of “a couple of days.” In any event, the Crown asserted that these are not major inconsistencies so as to impale C.Y.’s credibility. [ 159 ] The Defence submitted that this was a major inconsistency between her testimony and her statements.

In particular, the Defence submitted that if, as C.Y. stated to the police, that C.T. was told about the alleged offences earlier in the day on February 19, 2020, it would not have been a peaceful scene when Doreen Wiseman had the FaceTime call with the Accused and C.T. that evening. [ 160 ] At this point I will diverge to consider the evidence of Doreen Wiseman. [ 161 ] In assessing the evidence of Doreen Wiseman, as the mother of the Accused, I am mindful of the caution from the Supreme Court in R. v.

Laboucan , 2010 SCC 12 at paragraph 11 , that the fact that a witness has an interest in the outcome of the proceedings is a relevant factor to take into account when assessing the credibility of the witness’s testimony. However, I should not place undue weight on the status of a person in the proceedings as a factor going to credibility. It would be improper for me to base a finding of credibility regarding Doreen Wiseman’s testimony solely on the basis of her parental relationship to the Accused. I must give regard to all relevant factors in assessing credibility. [ 162 ] I found Ms.

Wiseman to give her evidence in a straightforward manner. I accept that she had a FaceTime call with her son on February 19, 2020 at approximately 9 p.m. I accept that this call occurred while the Accused was at C.T.’s residence and that at that time everything was amicable between the Accused and C.T. [ 163 ] The Defence contends this contradicts the evidence of C.Y. that her mother found out earlier that day. This was not however the testimony of C.Y. It is what she said in her police statements.

Although C.Y. acknowledged that she probably remembered things better at the time she gave her statements, she did not adopt the portions of her statement related to the timing of events. [ 164 ] Rather, C.Y. maintained in her testimony that her mother found out about the alleged offences later in the evening, after pizza. It could be that at the time Ms. Wiseman conversed with C.T. and the Accused, C.T. was not yet aware of C.Y.’s allegations. What is

known is that an hour and a half later, by 10:30 p.m. that evening when the police arrive, it is not a harmonious scene. [ 165 ] I will briefly deal with one other point regarding Ms. Wiseman’s testimony that was raised by the Crown on final submissions. The Crown asserted that the evidence of Doreen Wiseman that C.T. posted a photograph of the Accused on Facebook in which he is sitting on C.T.’s loveseat wearing boxers is evidence that he was at C.T.’s residence the evening of the alleged assault. I reject this submission. I have no evidence as to when this photograph was taken.

It could have also been taken the evening of the FaceTime call. Ms. Wiseman’s evidence was at that time she saw clothing strewn around the house and the Accused told her C.T. was helping him sort his laundry and pack to go to rehab the next day. Ms. Wiseman also testified that there was a girl present at that time taking photos with her cell phone. [ 166 ] I find C.Y.’s testimony was inconsistent with her prior statements in terms of whether the offences occurred the night before the police arrived or two nights before.

It was also inconsistent in terms of whether the Accused left and returned to C.T.’s residence. [ 167 ] I do not find however that these inconsistencies between C.Y.’s statements and her testimony significantly affected the reliability of her evidence. C.Y. was 14 years old at the time of the alleged offences. She gave her evidence three years later. Not knowing if it was night before or two nights before or whether the Accused left the house and returned are not major inconsistencies. [ 168 ] These are the types of inaccuracy in detail that are to be expected in the testimony of a youthful witness.

As Wilson J. stated in R. v. B. (G.) at paragraph 56 , children may not be able to recount precise details and communicate the when and where of an event with exactitude. C.Y.’s Evidence Regarding the Sexual Offences [ 169 ] In her direct evidence, C.Y. provided a full account of what happened on the evening of the alleged sexual offences and into the next day. In doing so, she twice gave an account of a sexual assault that occurred while R.Y. was out of the room.

The sexual assault was comprised of the Accused grabbing her by the throat and forcibly kissing her and inserting his fingers in her vagina. [ 170 ] When R.Y. returned to the bedroom C.Y. was asked what happened next. She testified that the Accused laid down on the bottom bunk bed. He grabbed her and made her lie down with him. C.Y. testified that she laid there until the Accused fell asleep and then she got up.

C.Y. made no mention of any further sexual assault occurring while she laid on the bed with the Accused. [ 171 ] C.Y. concluded her full account of the events including details of the events the following day up to when she gave her statement to the police that night. [ 172 ] It is only after the Crown circled back and reminded C.Y. of her evidence and specifically asked whether the Accused had touched her with any other part of his body that C.Y. mentioned a further sexual assault that occurred while she was lying down with the Accused.

Even then, C.Y. initially said she had not been touched by any other part of the Accused’s body. He had tried to take it that far but she was thankful it never happened. [ 173 ] Upon being further asked to explain what she meant by “take it that far” for the first time C.Y. described the Accused trying to remove her underwear, attempting to insert his penis in her, and rubbing his penis against her back. [ 174 ] After C.Y. replied “no” to the question of the Accused having touched her with any other part of his body, there was a noticeable pause before she added that the Accused tried to take it that far.

In observing and hearing C.Y. tell this part of the story, and the manner in which it unfolded, left me to question whether C.Y. was recalling what had actually happened or whether she was trying to recall what she had previously told the police had happened and must have forgotten to mention in her earlier evidence. [ 175 ] I found C.Y.’s evidence regarding these allegations not to be reliable. C.Y. had a very specific line of questioning put to her about whether the Accused had touched her with any other part of her body and she initially said no.

Upon further questioning, she then gave details of a significant intrusive touching of her body by the Accused with his penis. [ 176 ] Significantly, C.Y. did not mention this sexual assault despite having provided the entirety of her evidence as to what transpired the evening in question. This was not a situation where a young witness might elaborate and provide more details when asked specific questions about what happened. C.Y. had not mentioned this sexual assault at all in giving her full narrative.

She was not going back and filling in the details. [ 177 ] The fact that C.Y. did not mention the subsequent allegations of sexual assault is particularly troubling in that her full account of the events of the evening in question included the time during which she ultimately said this sexual assault occurred – that being when the Accused pulled her down to lay with him on the bunkbed. In giving that account she initially testified that she waited for the Accused to fall asleep and then got up. [ 178 ] I found this part of C.Y.’s testimony significantly affected the reliability of her evidence.

It goes to the central issues of the sexual offences. It is such that it has left me to question the entirety of her evidence regarding the events surrounding the sexual offences.

C.Y.’s Evidence Regarding the Accused Screaming [ 179 ] C.Y. testified that, at the time of the alleged assault, C.Y. and the Accused were in R.Y.’s bedroom. That room shared a wall with C.T.’s bedroom. On cross-examination, a portion of her police statement of February 21, 2020 was read to C.Y. in which she stated that the Accused was screaming and with the hole in the wall her mother could hear everything that goes on. C.Y. replied she did not know why she would have said that.

Her mother could not hear. [ 180 ] Defence counsel continued this line of questioning by putting to C.Y. that she said in her statement that the Accused was in R.Y.’s room screaming. C.Y. replied: A: I don’t remember that. No one was screaming, no one was screaming, like it was literally quiet. If, If not my mom would have woke up but there, like When that stuff was going on there was like no screaming The following exchange then transpired: Q: So you’re saying back on the Friday February 21st that Chris was screaming in the room but now you are saying that no one was screaming?

A: Not that I remember, like this, like I truly don’t remember and I am not going to sit here and lie. Q: Alright so you can’t remember now? A: No, I can’t. [ 181 ] The result is that when confronted with her statement that she told the police the Accused was screaming and the hole in the wall was such that her mother could hear everything, C.Y. retracted from what she said in her statement about being able to hear through the hole in the wall. C.Y. then went on to say there was no screaming. It was literally quiet or her mother would have awakened.

After making a definitive statement about it being quiet, however, C.Y. ultimately testified that she did not remember if there was any screaming. [ 182 ] The Crown submitted that the questioning of C.Y. was not exact as to the period in which she was alleging the Accused was screaming and that she may have instead been referencing the night the police came. I do not accept that this line of questioning was confusing. The time being asked about was clearly when the Accused was in R.Y.’s room and her mother was in the adjoining room.

C.Y.’s evidence was clear that on the night the police came there was screaming between her mother and the Accused. That occurred when C.Y. was upstairs and the Accused and her mother were downstairs in the same room. [ 183 ] C.Y.’s evidence on this point concerns what was happening at the time relevant to the offences. C.Y. initially testified that her police statement on this point was incorrect. There was no screaming. It was literally quiet.

After making that definitive statement, she ultimately testified that she did not remember if there was any screaming happening at the time. [ 184 ] The inconsistencies arising on this point, may be an example of C.Y. trying to avoid any aspersion being cast against her mother that she was in the adjacent room and should have heard what was happening and responded. Regardless of the reason, I find the changing of her evidence and inconsistency with her prior statement affected the reliability of C.Y.’s evidence.

C.Y.’s Evidence on Altercation between the Accused and C.T. [ 185 ] In her direct evidence, C.Y. described an altercation between C.T. and the Accused. When asked about the altercation on cross- examination it was put to her that her mother punched the Accused in the face. She replied, “No.” She then described, similar to her direct evidence, that the Accused was “going at” her mother. He pushed her to the floor and her mother pushed him back. [ 186 ] It was put to C.Y. that in the statement she gave on February 21, 2020 she said her mother “came up and hit him.” C.Y. acknowledged that she witnessed this.

She was then asked, “So you did see her punch him in the face?” She replied, “Yes.” She was asked how her mother hit the Accused and she replied that she punched him because he pushed her on the floor. C.Y. was asked where her mother hit the Accused. She replied, “In the face.” [ 187 ] C.Y.’s evidence in describing this altercation varied. She began by denying her mother punched the Accused in the face but ultimately acknowledged this is what she observed. This is an inconsistency on a peripheral matter.

It again seemed to be in the context of not wanting to acknowledge that her mother may have done something wrong. In isolation, this may not be of much significance. It is however, an example of C.Y. changing her evidence. It forms a part of the accumulation of inconsistencies that contributed to my reasonable doubt. The Evidence Regarding the Request for the Video [ 188 ] Cst. Percey testified that after she finished taking C.Y.s statement she requested C.Y. provide the video of the assault alleged to be on C.Y.’s cell phone. Cst. Percey testified that C.Y. acknowledged she would send the video.

C.Y. did not do so.

[ 189 ] On her direct examination, C.Y. was asked about attending at the police station to give her statement. She was asked if the police asked her to provide anything to them and she replied, “All the details.” She was then asked if the police asked her to do anything else and she said, “No.” [ 190 ] On the cross-examination of C.Y. the following exchange occurred: Q. Do you recall telling Constable Percey that you had videos of the sexual assault on your cellphone. A: No, I don’t remember saying that.

But there was a picture, like, my brother had the picture like, Chris had me on his lap that was probably a picture that they were talking about because there was no video. Q: So you’re saying there was never any videos on your phone of the sexual assault. A: No. … Q. Now, I understood from Constable Percey this morning that after the recorded video statement you and her had some discussion. Do you recall that? A: Yes. Q: And that in that discussion it was suggested you acknowledged you had videos of the assaults. Do you recall? A: I don’t.

I really don’t remember saying that but there was a picture and I was wearing a pair of boxers and I was wearing like a tube top and I was sitting on his lap. Q: Ok but on your phone it’s been suggested that you had videos of the sexual assault or of the assaults in general. A: No. I don’t know, like, I don’t, like I probably did on an old phone but like I have a brand new phone so, like, I don’t, I really don’t know. If I had the videos, I would have gave them to the cops, that’s like, that’s what I’m saying. Like, I would have gave them to the cops the day it happened. [ 191 ] I accept the evidence of Cst.

Percey that she spoke to C.Y. about the video alleged to be on C.Y.’s cell phone and that C.Y. acknowledged she would send the video to Cst. Percey. [ 192 ] I found the variation in C.Y.’s evidence around this issue to be troubling. Initially C.Y. was firm that there was no video of the assault on her cell phone. When it was again put to her that, that it had been suggested there was a video on her phone, she then said she did not know. She probably did have a video on an old phone. Then she added that if she did she would have given them to the cops the day it happened. [ 193 ] I found this to be significant.

C.Y wavered from definitely not having such a video on her phone to saying she did not know and that she probably did on an old phone. In changing her evidence this way, C.Y. did not seem concerned with carefully considering if what she was telling the Court was accurate. It would be reasonable to expect C.Y. to recall whether she had a video of the alleged assaults on her phone. Her equivocation on this point negatively affected the reliability of her evidence. Evidence Regarding the Police Request for C.Y.’s DNA Sample [ 194 ] Cst.

Percey testified that there had been a number of telephone calls and at least two appointments set up for C.Y. to provide a DNA sample. Cst. Stacey also testified as to the police efforts to obtain C.Y.’s DNA sample and the importance of obtaining the sample for any DNA analysis conducted. [ 195 ] On cross-examination, it was put to C.Y. that she had been asked numerous times to provide a DNA sample and had either refused or not shown up for scheduled appointments. She recalled being asked to give a DNA sample but did not recall being asked numerous times or not attending appointments for that purpose.

She testified that she had not received a call about an appointment and if she had, she would have attended. [ 196 ] I accept the evidence of Cst. Percey and Cst. Sweetland that numerous attempts were made by the police to obtain DNA samples from C.Y. but that C.Y. was not cooperative.

[ 197 ] I have considered and accept that C.Y. was experiencing disruption in her life around the time that these requests were made. However, given the persistence of the officers in making numerous requests, I do not accept C.Y.’s evidence that she was not aware of the numerous requests and had she been aware of the appointment she would have attended. [ 198 ] The Crown submitted that in any event the issue of C.Y’s DNA is a red herring in that it would not have affected the Crown’s case.

There is no evidence before the Court as to the degree to which C.Y.’s DNA sample may have assisted in the investigation of this case. Cst. Sweetland’s evidence was that it is usual to have a DNA sample of the complainant in conducting DNA analysis. [ 199 ] In any event, what is of significance is that I found C.Y. to be disingenuous in her evidence on this point. It was not a central issue but it did impact upon the reliability of C.Y.’s evidence.

Evidence Regarding the Accused Stealing Pills [ 200 ] Although the Defence submitted that the Accused allegedly stealing pills was the reason behind the confrontation that erupted on the evening the police arrived, I am unable to make that finding on the basis of the evidence. None of the officers attending the scene recalled allegations of a pill theft. [ 201 ] The Defence also pointed to an inconsistency in C.Y.’s evidence regarding this issue. C.Y. acknowledged on cross-examination that she made the allegation against the Accused about stealing pills from her mother.

C.Y. testified that she heard the Accused in the basement at the cupboard where the pills were kept. Later she testified that she did not know where her mother kept the pills. I find this to be a minor inconsistency in her evidence on an unrelated matter. It has not impacted my assessment of the reliability of C.Y.’s evidence. C.Y.’s Evidence Regarding the Condom [ 202 ] The Defence submitted that C.Y.’s evidence regarding the Accused throwing a condom out the bedroom window was intended to paint the Accused in a bad light or to implicate him in the offences.

This, the Defence submitted should adversely affect C.Y.’s credibility. [ 203 ] C.Y. did not allege the Accused used a condom during the alleged sexual assault. On cross-examination, C.Y. testified that she thought the Accused threw a condom out the bedroom window. [ 204 ] I accept Ms. Blackmore’s evidence that the analysis conducted on the condom determined that the DNA of a male, other than the Accused, was found on the condom. Ms. Blackmore’s evidence does not however contradict C.Y.’s evidence that the Accused may have thrown the condom out the window. This is because both sides of the condom were not tested.

Whether the Accused’s DNA (from having allegedly touched the condom) may have been found on the other side of the condom is not known. [ 205 ] In assessing this evidence, I have also considered the evidence of Cst. Hunt regarding having heard that the children may have thrown items out the window and that R.Y. was observed replacing the screen to the window. C.Y. testified that neither she nor R.Y. threw anything out the window. [ 206 ] I am unable, to conclude who, if anyone, may have thrown the condom out the window. This issue is peripheral and of low probative value.

C.Y.’s evidence about the condom did not adversely affect her credibility. C.Y.’s Evidence Regarding the Threats [ 207 ] I found C.Y.’s evidence around the timing of the threats and who they were directed against to be inconsistent. [ 208 ] In her direct evidence, C.Y. stated that while the Accused was kissing and touching her he threatened to kill her mother. After he touched her and while R.Y. was still out of the bedroom, the Accused threatened to kill C.Y.

In making this threat, C.Y. testified that the Accused told her if she said anything to her mother or her brothers, even R.Y., they would all be killed. [ 209 ] Later in her direct evidence, C.Y. was specifically asked if she heard the Accused threaten anyone besides herself. She replied, “No.” She was asked whom the threats were directed against. C.Y. then said the Accused threatened her and R.Y. after R.Y. came back in the bedroom.

The Accused, C.Y. said, looked at both of them and said if they said anything, they would be dead. [ 210 ] Furthermore, C.Y.’s first account of threats by the Accused involved threats against her mother. She repeated that after the Accused touched her, he threatened her, her mother and her brothers.

However, when she was specifically asked whether anyone besides herself was threatened she did not mention the threat against her mother or her other brothers. [ 211 ] On further questioning on this point, C.Y. stated when R.Y. came back in the room, the Accused threatened both of them that if they told what had happened they would be dead. This does not line up with her account of the threat that C.Y. said the Accused made against her while R.Y. was not in the room. At that time, C.Y. said the Accused threatened her not to tell anyone what happened including R.Y.

If the Accused had threatened C.Y. while R.Y. was out of the bedroom, not to tell R.Y., why would the Accused upon R.Y.’s return to the bedroom, repeat the threat in front of R.Y. and direct it at him too? One possibility is that C.Y. told R.Y. about what had happened prior to the alleged threat being made against C.Y. and R.Y. however this is not clear from the evidence. [ 212 ] C.Y.’s evidence on this is crucial particularly with respect to the uttering threats counts.

The variations in C.Y.’s testimony as to who was threatened and whether anyone other than herself was threatened in addition to the other inconsistencies in her evidence, has left me with a reasonable doubt as to what, if any, threat was made by the Accused against C.Y. or R.Y. Evidence Regarding the Accused Drinking the Night the Police Came [ 213 ] C.Y.’s evidence on whether the Accused was drinking or using substances is important to the counts of breach of recognizance.

Inconsistency in C.Y.’s evidence on this point can also affect the overall reliability of her evidence. [214] C.Y. repeatedly said the Accused was drinking the night the police came. She described him as being drunk to the point of notbeing able to walk a straight line. [215] Cst. Lynch did not smell alcohol off the Accused. She thought he may however be intoxicated from a substance other thanalcohol as he was not making any sense and he told them he had taken pills. [216] Cst.

Crocker, who is a former breathalyzer technician, testified that he did not detect any odor of alcohol from the Accused theevening that C.Y. claims he was drinking. Nor did he believe the Accused was drunk even though he claimed to have consumed anexcessive amount of alcohol. Tests performed that night at the hospital determined that there was no alcohol in the Accused’s system. [217] I accept Cst.

Crocker’s evidence and find, contrary to C.Y.’s repeated assertions, that the Accused was not drinking on the nighthe was taken to hospital by the police. [218] In terms of any impact that this has on the reliability of C.Y.’s evidence, it could simply mean C.Y. was mistaken in saying theAccused was drinking that night. However, C.Y. said it repeatedly and made a point of changing her evidence from the Accuseddrinking and sniffing prescriptions that night to the Accused only drinking.

In doing so, I found this was another example of C.Y.testifying in a manner to try to insulate her mother from any perception of wrongdoing. In changing this part of her evidence, C.Y. addedthat her mother did not know about drug usage or she would have kicked the Accused out of the house. C.Y.s evidence on whether theAccused was drinking and the change in her evidence on this point affected the reliability of her evidence. Inadequacy of the Investigation and Witnesses Not Called to Testify (

a) Inadequacy of the Investigation [219] The Defence submitted that the police investigation was inadequate and that this created gaps in the evidence that should give riseto a reasonable doubt. [220] The absence of evidence can, in some cases, be an important consideration in determining whether the Crown has proven its casebeyond a reasonable doubt. In R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, Cory J. stated that a reasonable doubt may be“derived from the evidence or absence of evidence.” [221] My reasonable doubt in this case derived from my concerns regarding the reliability of the evidence of C.Y. and not from theabsence of any evidence that may have been obtained from other potential sources. However, I agree with the Defence submission thatthe investigation in this case was inadequate. It would have been reasonable to expect a much more in-depth investigation. I will explainmy concerns. [222] Cst. Crocker and Cst.

Lynch were the first officers to attend C.T.’s residence on February 19, 2020. They arrived atapproximately 10:30 p.m. Both testified that they were called for a domestic disturbance. The specific nature of the complaint by C.T.that caused the police to attend at her residence was not clear from the evidence. C.T. was not called to testify. The police did not testifythat the call received from C.T. was regarding sexual assault of children. [223] The evidence of Cst.

Crocker upon arrival on the scene is that the Accused was in mental health crisis and that C.T. stated shewanted him taken away to the psychiatric assessment unit as he needed help. [224] The first evidence of sexual assault allegations surface when Cst. Cole and Cst. Hunt, the second set of officers, arrive at theresidence on the same evening. C.Y. spoke to Cst. Cole at 11:54 p.m., approximately an hour and a half after the first officers arrived atC.T.’s residence. It is during this statement allegations of sexual assault are revealed to the police. [225] During the time that Cst. Cole and Cst.

Hunt were at the residence, Cst. Hunt observed R.Y. putting a screen back in his bedroomwindow. This is occurring while R.Y. is relaying information as to what is alleged to have occurred. During this time, Cst. Hunt isinformed by someone present that the R.Y. or C.Y. may have thrown items out the window. I accepted this evidence not for its truth butfor the fact that it was said and that it caused the officers to take steps to retrieve items gathered as exhibits from the ground outside thewindow. [226] The police found underwear alleged to have belonged to the Accused outside the window. When Cst.

Hunt returned to the scenelater that night he also found a condom. He seized the condom as evidence. The condom was not however accepted for testing by theforensic lab. It was later released to the Accused for forensic testing and determined by Ms. Blackmore to contain the DNA of a maleother than the Accused on the side of the condom that was tested. [227] Ms. Blackmore testified if other DNA samples had been sent for testing, those could have been compared to the DNA profilesgenerated. [228] Cst. Sweetland submitted a list of eight exhibit items that the police had seized for potential DNA analysis to the lab.

Cst.Sweetland understands that the lab chooses the items for testing that it believes to have the most evidentiary value. Surpris

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