Docket: CACR2043 Raymond David Lindsay Appellant - v. -, 2012 SKCA 33

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 33 Date: 20120315 Between: Docket: CACR2043 Raymond David Lindsay Appellant - and - Her Majesty the Queen Respondent Between: Docket: CACR2044 Her Majesty the Queen Appellant - and - Raymond David Lindsay

Respondent An order has been made in this case prohibiting publication of any information that could disclose the identity of the complainants pursuant to s. 486.4(1) of the Criminal Code . Coram: Jackson, Richards & Caldwell JJ.A. Counsel: Anthony Gerein for the Crown Donald Mullord, Q.C. for Raymond David Lindsay Appeal: From: Q.B.J. No. 27 of 2010, J.C. Saskatoon Heard: February 27, 2012 Disposition: Conviction Appeal – Dismissed Sentence Appeal – Allowed Written Reasons: March 15, 2012 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr. Justice Caldwell

Jackson J.A. I. Introduction [ 1 ] These reasons pertain to an appeal from a conviction and an appeal from a refusal to order an assessment of the convicted offender pursuant to s. 752.1 of the Criminal Code . [ 2 ] After a trial in the Court of Queen’s Bench, Allbright J. convicted Raymond Lindsay of two counts of sexual assault against two children, R.L. and T.L. The Crown then applied for an order under s. 752.1 of the Criminal Code , remanding Mr. Lindsay for an assessment to determine whether an application should be made to declare him a dangerous or long-term offender.

Allbright J. declined to grant the s. 752.1 order on the footing that the Crown was in the process of pursuing a dangerous offender designation against Mr. Lindsay, with respect to other offences, in parallel proceedings, also taking place in the Court of Queen’s Bench. [ 3 ] Having declined to make the s. 752.1 order, Allbright J. proceeded to sentence Mr. Lindsay in the usual way. After giving him 22 months credit for remand time, Allbright J. sentenced him to 50 months on each count to be served concurrently, resulting in an effective sentence of six years. [ 4 ] Mr.

Lindsay and the Crown now appeal to this Court. Mr. Lindsay appeals his conviction in relation to R.L. only. He submits that the conviction is unreasonable or cannot be supported by the evidence according to s. 686(1) (a)(

i) of the Criminal Code . He also appeals the fitness of his sentence, saying it is excessive in light of other sentences imposed on similar offenders in similar circumstances. [ 5 ] For its part, the Crown appeals Allbright J.’s decision declining to make an order under s. 752.1 . If that appeal should fail, the Crown also appeals the fitness of the sentence on the basis that it is disproportionate to the gravity of the offences and Mr. Lindsay’s culpability. [ 6 ] In the result, I conclude that there is no basis upon which Mr. Lindsay can succeed with his conviction appeal.

Allbright J. committed no errors of law and the verdict is not unreasonable. It is amply supported by the evidence. [ 7 ] The Crown’s appeal from the refusal of an order under s. 752.1 , however, must be allowed on the basis that any concern the Court might have in relation to dual proceedings is premature. Until it is known what the Crown intends to do with two assessments of the same offender, it is premature to consider whether the Court, on a proper application, has the authority to prevent the Crown from proceeding with two applications to declare Mr. Lindsay dangerous.

Having allowed the appeal in relation to the decision under s. 752.1 , the sentences must be set aside, and the matter be remitted to Allbright J. to make the order required in the circumstances.

II. Appeal from Conviction in Relation to R.L. [ 8 ] The charges arose out of events that took place in 2005. Mr. Lindsay became associated with S.L., a long-time friend of the mother of R.L. and of T.L. R.L., a male child, was at that time nine and one-half years old and his sister, T.L., was not quite six years old. [ 9 ] In 2005, Mr. Lindsay and S.L. were living in a trailer park in Alberta near to the children and their mother. In the summer of 2005, S.L. invited T.L. and R.L. to join her and Mr.

Lindsay on a trip to Saskatchewan and to stay with them in their newly-acquired home for approximately two to three weeks. [ 10 ] At the time of Mr. Lindsay’s trial, R.L. was almost 15 years old and T.L. was almost 12. R.L. testified as to two incidents that are pertinent to the conviction appeal. First, R.L. testified that he walked into an upstairs bedroom in the Lindsay house in Saskatchewan and saw his sister lying on an air mattress with her skirt pulled down to her ankles. She was on her stomach and Mr. Lindsay was at her feet. Mr. Lindsay’s pants were down. He could see Mr.

Lindsay’s penis and his buttocks. He described Mr. Lindsay’s penis as soft. Mr. Lindsay was holding T.L.'s hips and pulling her towards him. He was telling her to “come here”. R.L. heard his sister telling Mr. Lindsay to leave her alone, that she did not want to play. He saw Mr. Lindsay lying on his sister. He asked Mr. Lindsay what he was doing. Mr. Lindsay told him they were playing and that he should leave. R.L. gave this testimony by responding to specific questions posed by the Crown (Trial Transcript, Vol. II, pp. 158-62). [ 11 ] Second, R.L. testified that a few days later Mr.

Lindsay came into his bedroom in the middle of the night and assaulted him. He testified in this manner: A. Well, about three days later, I was in my room kind of looking out the window. It was around midnight. And [S.L.], I think she went to Rosetown. I’m not too sure why, she might have been getting gas or something. But he came into my room and he–like, I didn’t really notice him at first, but then he started walking around, and then I kind of noticed him. And he was just kind of looking around, seeing if I was awake or not.

And then he went around the side of the bed, and then sat down and took his shirt off, and then just laid in the bed. And then I asked him, kind of, what he was doing but he said nothing, so I kind of just laid there. And then he rolled over, and then he took his pants off, and he put them on the floor, and then he pulled the blanket over himself. And then I asked him what he was doing, and he said, nothing, and then he tried to pull my pants off, but I pulled them back up. And he said, just let me do this, and I said, do what?

And then he was, like, don’t worry about it, and then he pulled my pants down and tried to put his penis in my bum. And I asked why he was doing it and he said, because your sister is sleeping. And I said, okay, then, what does that mean, and he said, just let me do this, and I said, I don’t want you to, but he just kept doing it. And then every time I pushed him away, he came back harder until he got what he wanted, and then after he was done he rolled over, and then kind of left, but he was mad because I told him that I didn’t want−I didn’t want him to do it.

So he–he didn’t really get very far, so he was mad and started, like, saying, like, you shouldn’t–you should have let me do that, and you’re not good enough, and this girl is better than you because she lets me do everything, and stuff like that. (Trial Transcript, Vol. II, p. 164, line 15 to p. 165, line 25). [ 12 ] For her part, T.L. testified as to multiple fondling and touching assaults committed by Mr. Lindsay. She said these incidents took place in the TV room, on the main floor, and in her upstairs bedroom. She did not describe an incident of the nature that R.L . described.

While she testified that she saw the accused touch R.L. on a number of occasions, she also specifically stated that she did not see anything happen to him in Saskatchewan (Trial Transcript, Vol. I, p. 140). [ 13 ] Mr. Lindsay testified. He admitted that he “suffer[s] from a sexual deviancy, commonly referred to as paedophilia” (Trial Transcript, Vol. II, p. 206). He admitted that he had sexually assaulted T.L in Alberta and in Saskatchewan (Trial Transcript, Vol. II, pp. 206-09). He denied the location of the incidents. Contrary to T.L.’s testimony, Mr.

Lindsay stated that he had not touched T.L upstairs in the Saskatchewan house. All of the touching, according to him, took place while they were watching television in a downstairs room (Trial Transcript, Vol. II, p. 208). He also denied using any body part other than his hands (Trial Transcript, Vol. II, p. 209). [ 14 ] Having admitted to sexually assaulting T.L., Mr. Lindsay attacks his conviction in relation to R.L. on these bases: (

i) T.L.’s evidence is inconsistent with that of R.L.; (ii) the rote-like manner in which R.L. gave his testimony should have undermined his credibility; and (iii) he, Mr. Lindsay, has no past legal history indicating any involvement with boys. He testified that he is attracted to young girls only, with a preference for girls aged eight or nine (Trial Transcript, Vol. II, p. 207). He categorically denied either of the incidents described by R.L., saying that he did not “go for boys” (Trial Transcript, Vol. II, p. 210, line 20). [ 15 ] Specifically, Mr.

Lindsay identifies these “inconsistencies” between the evidence of T.L. and R.L: 1. T.L. did not say Mr. Lindsay attempted to penetrate her anally on any occasion; 2. T.L. did not say she saw R.L. observing her and Mr. Lindsay in her bedroom;

3. T.L. said she did not see Mr. Lindsay do anything to R.L. in Saskatchewan. Of these, only the first can be classified as an inconsistency between the testimonies of the two children. R.L. did not say T.L. saw him in her bedroom, which means there is no conflict with the second point. Further, R.L. did not say T.L. saw Mr. Lindsay assault him on any occasion, which eliminates the concern regarding the third point. This leaves the conflict on the first point, only. [ 16 ] Allbright J. instructed himself in relation to how to assess the evidence of the children in this way: ...

We cannot, as jurists, expect their evidence to have the same cohesive quality that we might expect of an adult, giving evidence as an adult, and recalling events that occurred when that person was an adult.

Still, we must be careful in assessing the evidence of any witness, including the evidence of a child witness, to ensure that credibility is properly assessed and properly tested, to look for corroborative aspects of their testimony and other–in other pieces of testimony, and things of that nature ... . . . ... [A] judge in my position may accept all, part or none of the witness’ evidence, and that decision is mine. People see and hear things differently. This means that we should not be surprised to find innocent discrepancies in the testimony of witnesses.

Such discrepancies do not mean that that witness’ testimony should be rejected. Discrepancies in minor matters are often unimportant. Major matters, however, may be viewed somewhat differently. On the other hand, it is entirely different when a witness deliberately lies under oath. A deliberate lie under oath is always serious, and may well taint the entire testimony of a witness. And as I’ve indicated, in this trial, the two witnesses testified about events that occurred when they were young children.

And, as I said, their evidence, for instance, and their credibility must be assessed by reference to standards appropriate to their ages at the time of the occurrence of the matters before the court . Generally speaking, when adults testify about events that occurred when they were a child, their credibility should be assessed according to the standards that are applicable to them as adult witnesses, but that is not necessarily the case when a person testifies, still as a child, about incidents that occurred when they were younger children in that particular regard.

So I am mindful of all of the comments that courts have made about assessing that testimony and credibility , and I talk about it in that sense. (Trial Transcript, Vol. II, p. 273, line 3 to p. 275, line 6) [Emphasis added.] [ 17 ] Since Mr. Lindsay admitted he had sexually assaulted T.L., her credibility, with respect to the assaults on her, was largely affirmed, but it was nonetheless necessary to address her credibility in relation to the inconsistency between the testimonies of the two children, with respect to the nature of the type of assault committed by Mr. Lindsay in the upstairs bedroom.

Allbright J. was alert to this issue, and he made this specific finding: ... I accept the evidence of T.L. that the incident–an incident occurred upstairs in the house where she was approached by the accused, and that the accused used his hand to touch her vaginal area, and committed the sexual assault that was there. (Trial Transcript, Vol. II, p. 280, lines 7-12) With respect to what R.L. saw in relation to T.L. in the upstairs bedroom, Allbright J. found as follows: I accept the evidence of R.L. that that’s what he saw. It may not have occurred exactly as he saw it.

He was ten years of age at the time, and this is five years ago, coming six years ago. It’s five and a half years ago that this occurred. Some of his details may not be accurate, but the skeletal proposition that he walked into the room and saw Mr. Lindsay with his sister, both of them in some state of undress, and Mr. Lindsay doing something inappropriate in relation to his sister, I accept his evidence in that regard . (Trial Transcript, Vol. II, p. 283, lines 11-21.) [Emphasis added.] [ 18 ] Having made this finding, R.L.’s credibility as to whether he had seen an incident between his sister and Mr.

Lindsay was in part affirmed. It remained for Allbright J. to assess the credibility of R.L. in relation to the alleged sexual assault itself. Applying the principles articulated by him earlier in his reasons, Allbright J. stated: What do I accept from the evidence of R.L.? I accept the evidence of R.L. that an incident occurred in his bedroom upstairs in which he was sexually violated . I am not satisfied beyond a reasonable doubt that there was anal penetration, and I’m not satisfied beyond a reasonable doubt of that fact for the following reason.

As I watched R.L. give his evidence in that regard, I wasn’t sure at first what he said, what his response to the question was of him, and I had to listen again very carefully to determine what it was, and his evidence was, in court, that he was anally penetrated. I go back to the statement that he gave to the police officer when he was discussing the matter when, in fairness to him, he was not expecting to be questioned in that particular regard, but he was very clear when he was asked on that occasion if there was penetration, and he said no. I think, in fairness to R.L., you have to remember this.

The physiology of one male trying to penetrate another male anally, he said he was trying to penetrate me, I’m not sure that it would be clear to a lot of people when that had successfully occurred or not. And quite frankly, I think all R.L. was attempting to do was tell us that his sexual integrity was violated, and that he thought that that’s what was happening . (Trial Transcript, Vol. II, p. 284, line 19 to p. 285, line 20) [Emphasis added.] [ 19 ] Mr. Lindsay’s counsel asserts that Allbright J. inappropriately re-wrote R.L.’s evidence to make it conform to T.L.’s evidence on a

matter of significance. In my view, however, it was entirely appropriate for Allbright J. to accept the core of the evidence of the two. Heaccepted that T.L. was assaulted in her upstairs bedroom. He accepted that R.L. saw something of a sexual nature that happened to T.L.in that bedroom.

In light of the whole of the evidence, including his finding that T.L. had been sexually assaulted in her upstairsbedroom, this was an appropriate approach to the fact-finding exercise. [20] Further, while it was necessary for Allbright J. to resolve the inconsistency between the testimony of the two, the major issue waswhether R.L. had himself been assaulted. Even if R.L. did not see an incident, involving T.L. and Mr. Lindsay, he nonetheless wasunshaken about the assault on himself.

He testified in a narrative manner, recalling detailed aspects of the conversation, but theassessment of how a witness testifies must as a general rule be left to the trier of fact. There could be many reasons why a child mightchoose to testify so. It would be difficult, if not impossible, for an appeal court to give effect to this aspect of the appeal without morethan what has been argued in this case. [21] With respect to Mr. Lindsay’s avowal that he has no interest in boys, Allbright J. addressed this credibly. He accepted R.L.’scomments that Mr.

Lindsay talked to him about his sister being unavailable, and that “he had an easier time with being involved withanother girl who let him do what he wished to do in that regard” (Plea and Sentencing Transcript, p. 7, lines 9-11). Further, in cross-examination, Crown counsel elicited from Mr. Lindsay that in his opinion R.L. had feminine features and he had dressed like a girl onone occasion specifically to attract Mr. Lindsay’s interest (Trial Transcript, Vol. II, p. 234). Allbright J. did not find Mr. Lindsaycredible with respect to his denials in relation to R.L. because: (

i) he had lied to the police about whether he had assaulted T.L.; (ii) hegave various answers as to his age of preference for children—and his actions in relation to T.L. belied his stated age of preference beingfemale children aged eight or nine; and (iii) he minimized his role in assaulting T.L., suggesting that she had tempted him by heractions. [22] I can see no basis upon which to find fault with any of the reasons of Allbright J. He correctly instructed himself on the law,regarding how to assess the evidence of children.

From his reasons, it was clear that he had informed himself as to the controllingjurisprudence to which he had been referred: R. v. B.(G.), (SCC), [1990] 2 S.C.R 30; R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122 and R. v. F.(C.C.), (SCC), [1997] 3 S.C.R. 1183. He was alive to the need to consider thediscrepancies in the evidence and to be particularly careful when the discrepancies pertained to something other than collateral matters.In this case, Allbright J. was alert to the possibility of fabrication and exaggeration.

To illustrate this aspect of his reasons, I note that hedid not accept the whole of R.L.’s evidence; he accepted that there had been an attempt at anal intercourse only. [23] With respect to the reasonableness of the verdict, having examined and weighed the evidence, and considered its effect, there isevidence upon which a jury properly instructed could reasonably convict Mr. Lindsay of the assault on R.L. (see: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168). III. The Crown’s Appeal Refusing the Order under s. 752.1 [24] On June 11, 2010, in another earlier trial, Foley J. convicted Mr.

Lindsay of two counts of sexual touching in relation to two otherchildren and in relation to events that occurred subsequent in time to those involving T.L. and R.L. Following that conviction, the Crownapplied for an order under s. 752.1 compelling Mr. Lindsay to be remanded for the purpose of an assessment. Foley J. granted that orderand received an assessment of Mr. Lindsay sometime in the fall of 2010. [25] On March 10, 2011, the Crown applied to Allbright J. for an order under s. 752.1 in the proceedings pertaining to R.L. and T.L. Allbright J. heard submissions over successive hearing dates.

He ultimately put the Crown to an election: (

i) to proceed before Foley J.with the

Part XXIV proceedings—in which case Allbright J. would proceed to sentence on the charges before him; or (ii) to proceedbefore him with the

Part XXIV proceedings and undertake to withdraw the proceedings before Foley J.—in which case Foley J. wouldproceed to sentence in relation to the charges before him (Transcript, June 9, 2011, pp. 55-58). [26] Counsel for the Crown did not accept either of these options and requested a decision from Allbright J. as to whether he would orwould not grant an order under s. 752.1. Based on the full submissions that he had heard throughout this matter, Allbright J. formallydeclined to make an order under s. 752.1 (Transcript, June 17, 2011, p. 18).

Justice Allbright specifically found that, but for his concernsregarding the tandem procedures, he would have ordered the assessment requested. With that, the Crown launched this appeal as part ofits appeal from sentence. [27] Justice Allbright’s reasons for declining to make an order under s. 752.1 fall into two broad categories. First, he was concernedabout trial fairness. He found it unfair to subject Mr. Lindsay to a further assessment and he expressed his concern about inconsistentverdicts.

No application under the Charter was before him, but he commented upon the possible application of s. 7 of the Charternonetheless (Transcript, April 7, 2011, p. 48). In the second category of concerns, Justice Allbright spoke about the Court’s inherentjurisdiction to control its own process and the wastefulness of the use of the Court’s scarce resources by holding two separate dangerous

offender applications. [ 28 ] On appeal to this Court, the Crown’s first argument is this. On July 2, 2008, s. 752.1(1) of the Criminal Code was amended (see: S.C. 2008, c. 6, s. 41). The new

section states: s. 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1, the court shall , by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1. [Emphasis added] Before July 2, 2008, this

section used “may” rather than “shall” as the operative verb. Notwithstanding that the charges in this case arose in 2005, Crown counsel asserts that the new s. 752.1 applies retroactively, as the change to the law is not substantive in nature but rather is procedural. According to the new s. 752.1 and Crown counsel’s submissions, Justice Allbright was required to make an order compelling Mr.

Lindsay to submit to an assessment. [ 29 ] In the alternative, it is the Crown’s submission that even if the recent amendments to s. 752.1 do not apply, it would not be appropriate, having regard for the principles pertaining to prosecutorial discretion, for a sentencing judge to take into account what the Crown may or may not do after it receives a second assessment when deciding whether to make an order under s. 752.1.

Building on its principal and alternative submissions, Crown counsel asserts that Allbright J. was required to make the order requested and to reserve his concerns until it is determined what the Crown will do with two assessments. [ 30 ] For his part, counsel for Mr. Lindsay makes two concessions in this Court. First, he agrees the new provision is procedural and not substantive insofar as it now uses the verb “shall” rather than “may” in describing the authority of a sentencing judge to order an assessment. Second, he is now convinced that it would not be “unfair” to subject Mr.

Lindsay to another assessment—as opposed to any unfairness that might arise from two actual dangerous offender hearings being conducted in tandem or seriatim . On the question of fairness, regarding a second assessment only, Mr. Lindsay’s counsel indicates that his client has already consented to update the assessment prepared in relation to the matters before Foley J. Having made these concessions, Mr.

Lindsay’s counsel asserts strenuously that the whole purpose of the dangerous offender proceedings compels a conclusion that there can be only one hearing at any given time to determine whether someone is a dangerous offender—but that the Court is not yet confronting that issue. [ 31 ] In my respectful view, Allbright J. was not entitled at this stage of the process to take into account that an application for an assessment under s. 752.1 had already been made—my conclusion in this regard is strengthened by the concessions made by Mr. Lindsay’s counsel in this Court.

While the Crown asserts that the change to s. 752.1 is procedural, and points to some persuasive authority in that regard, we do not need to decide whether the old or the new legislation applies because the result would be the same under either regime. The issue need not be decided because any concerns, regarding the fairness of the process, are premature, regardless of which regime applies. [ 32 ] Any concerns that the Court might have are premature because

Part XXIV of the Criminal Code contemplates a two-step process. First, under either the old or new provisions, the Crown applies for an order remanding the offender to the custody of a person designated by the Court for the purpose of an assessment under s. 752.1. Second, after receiving the assessment, the Crown decides whether to apply for an order under s. 753 or s. 753.1. An application for an assessment does not mean that the Crown is required to take the second step. [ 33 ] We are at the first stage of the process only.

According to Crown counsel, the Crown has not decided what it will do with a second assessment. It may very well be that, with a second assessment in hand, the Crown will decide not to proceed with an application to declare Mr. Lindsay dangerous before one or other of the two judges, which would eliminate any concerns Allbright J. might have about two proceedings. Only if the Crown decides to proceed with two dangerous offender applications would it be appropriate to consider whether it is possible to proceed in such a way.

Until that time, the Crown has a certain discretion to determine its own course and to obtain a second assessment, as a result of the new offences. As Crown counsel in this Court pointed out, there can be legitimate public protection reasons why the Crown might wish to proceed with a second assessment in relation to a second set of offences. Further, it must be noted that Mr.

Lindsay did not raise any constitutional argument in this Court, or the Court of Queen’s Bench, which would permit a decision holding that s. 752.1 does not apply in the face of a Parliamentary direction requiring an order to be made. [ 34 ] With this decision, the sentences imposed upon Mr. Lindsay must be set aside. The sentences are set aside as Allbright J. would have had no authority to impose a determinate sentence in the face of a pending application under s. 752.1 . In doing so, we make no comment on the fitness of the sentences.

The matter is remitted to Justice Allbright to make the order required in the circumstances of this case, without regard for the fact that a brother judge has in hand an assessment of Mr. Lindsay obtained pursuant to an order made under s. 752.1 .

IV. Conclusion [ 35 ] The appeal from the conviction in relation to R.L. is dismissed. The appeal from the decision, declining to make an order under s. 752.1 of the Criminal Code , is allowed. The application under s. 752.1 is remitted to Allbright J. to make the order required in the circumstances of this case. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of March, A.D. 2012. __ “ Jackson J.A.” _____________________ Jackson J.A. I concur ___ “Richards J.A.” ____________________ Richards J.A. I concur ___ “Caldwell J.A.” ____________________ Caldwell J.A.