Skylar Ahpay Appellant v. His Majesty the King, 2022 SKCA 97

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3411 Citation: R v Ahpay , 2022 SKCA 97 Date: 2022-09-13 Between: Skylar Ahpay Appellant And His Majesty the King Respondent Before: Richards C.J.S., Caldwell and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Whitmore On appeal from: CRIM 18 of 2018, Yorkton Appeal heard: February 10, 2022 Counsel: Thomas Hynes for the Appellant Dale Tesarowski for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] The appellant, Skylar Ahpay, was charged with sexual assault. The complainant testified that Mr. Ahpay attacked her after she had walked away from a gathering at a bonfire. Mr. Ahpay acknowledged being at the gathering but denied the assault. [ 2 ] A Queen’s Bench judge rejected Mr. Ahpay’s evidence.

On the other hand, he found the complainant’s testimony to be corroborated in several respects and accepted her account of what had happened. Mr. Ahpay was convicted. [ 3 ] Mr. Ahpay appeals the conviction on the basis that the trial judge misapprehended the nature and role of corroboration evidence. [ 4 ] As explained below, I am not persuaded by Mr. Ahpay’s submissions. This appeal must be dismissed. II. BACKGROUND [ 5 ] Mr. Ahpay was charged on a three-count indictment.

The indictment alleged that, on June 30, 2018, at Fishing Lake First Nation, he had: (1) committed a sexual assault on the complainant contrary to s. 271 of the Criminal Code ; (2) with the intent to enable himself to commit the indictable offence of sexual assault, attempted to choke the complainant, contrary to s. 246 of the Criminal Code ; and (3) committed an assault on the complainant, contrary to s. 266 of the Criminal Code . Mr. Ahpay pleaded not guilty to these charges. [ 6 ] Four witnesses testified at the trial: (

a) Nikolay Kyosev, an RCMP officer; (

b) the complainant; (

c) the complainant’s mother; and (

d) Mr. Ahpay. It is useful to summarize their evidence. A. Constable Kyosev [ 7 ] Constable Kyosev testified that, at around 8:30 p.m. on June 30, 2018, the Wadena RCMP received a call reporting an unwanted person in a residence on Fishing Lake First Nation. Constable Kyosev and his partner attended the residence. They knocked on the door, but no one answered. They entered and found Mr. Ahpay sleeping in one of the bedrooms. The police determined that Mr. Ahpay was in breach of his release conditions and they arrested him. [ 8 ] Constable Kyosev said Mr. Ahpay was under the influence of alcohol.

He had the smell of liquor coming from his mouth and he laughed and giggled when interacting with the police. Constable Kyosev described Mr. Ahpay as wearing a grey/silver long-sleeved sweater, baggy pants, and big brown boots. Tattoos showed near his wrists from under his sleeves. Mr. Ahpay had shoulder-length hair tied up in a ponytail. A camouflage-coloured bandana was found in one of his pockets. [ 9 ] Mr. Ahpay was lodged in police cells while the Wadena RCMP contacted the detachment in Saskatoon about outstanding warrants. One of the conditions of Mr. Ahpay’s release was to not consume alcohol.

He denied being under its influence, so the officers

had him blow into an approved screening device. The device registered a “fail”. [ 10 ] The Saskatoon police detachment requested that Mr. Ahpay be remanded to them for the execution of warrants. Accordingly, Cst. Kyosev took Mr. Ahpay from the Wadena detachment to Saskatoon on July 1, 2018. [ 11 ] On July 3, 2018, Cst. Kyosev received a call from the complainant’s mother, who said she was bringing the complainant down to Wadena. The complainant attended the RCMP detachment office that afternoon and gave a video-recorded statement. [ 12 ] The statement included sexual assault allegations against Mr. Ahpay.

As a result, Cst. Kyosev promptly called the RCMP detachment in Saskatoon to request that Mr. Ahpay’s clothing and underwear be seized. However, by that time, Mr. Ahpay had been released from custody. Constable Kyosev then requested a warrant for Mr. Ahpay’s arrest. [ 13 ] After taking the statement from the complainant, Cst. Kyosev said that he asked her to show him where the alleged assault had occurred. They drove to Fishing Lake together. There, the complainant pointed from the police vehicle to a bushy area close to the lake.

Constable Kyosev exited the vehicle and took photographs of the spot where the complainant had pointed. He noted the grass appeared to be trampled, but no physical evidence was found. [ 14 ] Three exhibits were introduced into evidence through Cst. Kyosev: exhibit P-1 – a photograph taken from the police car of the place where the complainant said she had been attacked; exhibit P-2 – a more close-up photograph of the place where the complainant said she had been attacked; and exhibit P-3 – a Google Maps aerial photograph of the Fishing Lake campground, the place where the alleged assault took place. B.

The complainant [ 15 ] The complainant explained that she was celebrating a graduation on the evening in question. She had gone out driving around the Fishing Lake area with two friends before going to the house of one of the friend’s sisters to have drinks. The complainant indicated she had a few drinks of vodka but was not intoxicated. After some time there, the complainant said the three women went to meet up with some friends at the lake. On the way to the lake, the group stopped at a house belonging to the friend’s cousin, where they first saw Mr.

Ahpay, who was walking towards the house. [ 16 ] The complainant recounted that she and her friends then got dropped off at the lake. Other friends were already there. They had a bonfire and drank alcohol. The complainant said that, at one point, Mr. Ahpay walked out of the bush and joined the group. She said Mr. Ahpay “wasn’t acting all there” in that he was talking to himself, talking to the trees, and grabbing sticks out of the fire and waving them at people. The complainant said she felt unsafe around Mr.

Ahpay because it seemed he was under the influence of something other than alcohol. [ 17 ] The complainant testified that she told her friend she did not feel safe and wanted to go home. This was sometime after midnight. The complainant and her friend walked down a path, away from the bonfire, but her friend wanted to stop because she, the friend, was intoxicated. As the complainant and her friend sat down, Mr. Ahpay came running towards them and asked them what they were doing. The complainant told him that they were going home. She said Mr.

Ahpay then became angry and told them that they could not leave without him. [ 18 ] The complainant and her friend got up to leave. She said Mr. Ahpay then tried to put his hands around her friend’s neck and that she had pushed him away. Mr. Ahpay fell over some logs but got up and came at the complainant. She said Mr. Ahpay put his hands around her neck, but that she pushed him away again. The complainant said her friend then lay down to go to sleep. [ 19 ] The complainant decided to go home by herself. She said that she was walking down the road when Mr. Ahpay came up from behind and pushed her.

He flipped her over as she was about to get up. She tried to scream and hit him but could not. She indicated that Mr. Ahpay punched her in the face. The complainant testified that she must have been dazed because things were going black. She said that, when she could see again, Mr. Ahpay pulled down her leggings and had sexual intercourse with her. [ 20 ] According to the complainant, Mr. Ahpay stood over her and smiled when he was done. He pointed his fingers at her like a gun and said that he would kill her if she ever told anyone. Mr. Ahpay then left. [ 21 ] The complainant described Mr.

Ahpay as wearing a black hat, black pants and a black hoodie. He had a camouflage bandana wrapped around his neck, his long hair was tied up in a ponytail, and he had tattoos on his arms. She said that she had no doubt about who had attacked her. [ 22 ] The complainant testified that, after the assault, she collected herself. She heard her other friend coming closer, so she walked back to where the first friend was sleeping. They woke the first friend and the complainant and the first friend walked home. The complainant said that the next day she drank alcohol to try to numb the pain.

She washed and then threw out the clothes she had been wearing because they felt dirty. The complainant went to her mother that night to ask to stay with her. The complainant said that she broke down at her mother’s home and told her what had happened. [ 23 ] No sexual assault kit or medical examination was performed. The complainant’s friends were not called as witnesses, although a witness warrant was issued for one of them. C. The complainant’s mother [ 24 ] The Crown called the complainant’s mother as a witness. She said that the complainant had come to her house on July 3, 2018, and asked to sleep over.

The complainant had then become upset and told her about the alleged sexual assault. The mother suggested that they should go to the police.

D. Mr. Ahpay [25] Mr. Ahpay’s movements on the day of the alleged assault are not entirely clear from his testimony but it appears that hisevening began at the Wadena bar. He left the bar with his cousin and they went to his uncle Joe’s house at Fishing Lake where Mr. Ahpaycontinued drinking. He was invited to a poker game in Kylemore, a hamlet near Wadena. After he left the poker game, it seems that Mr.Ahpay ended up back at his uncle Joe’s house where he continued to drink. Mr. Ahpay and his uncle Richard then decided to walk to hisaunt’s house where he smoked weed.

At one point he noticed a crowd of people next door to his aunt’s residence. There, Mr. Ahpayencountered the complainant and several other people, including a woman named Shannon. According to Mr. Ahpay, he was supposed tohave hooked up with her a couple of nights before. Mr. Ahpay said that someone came up with the idea of going to the lake, so the groupwalked there. He drank from a bottle of whiskey during the walk to the lake. [26] Mr. Ahpay testified that there were two fires at the lake and that he was there for two hours. The group continued to drink.

Mr.Ahpay said Shannon was jealous that he was talking with the complainant’s friend. He said he walked over to the other bonfire, where hegot into an argument with a rival gang member. He left at 12:30 a.m. to go to his aunt’s house to sleep. [27] Mr. Ahpay indicated that he had been wearing a grey long-sleeved shirt, blue pants, a hat, steel-toed boots, and some bandanas.He agreed he had shoulder-length hair that he wore in a ponytail. He denied committing the offences alleged by the complainant. [28] In cross-examination, Mr.

Ahpay admitted to using crystal methamphetamine throughout the day in question, and the dayprevious, and that it had caused him to hallucinate. He said that he does not have trouble remembering things that took place when he wasdrinking or on crystal methamphetamine. He admitted to talking to the bushes and waving sticks around at the bonfire. However, hedenied ever touching the complainant. Mr. Ahpay said the only involvement that he had with the complainant was while walking from hisaunt’s house to the bonfire. III. THE TRIAL DECISION [29] In his submissions to the trial judge, Mr.

Ahpay’s counsel (not his counsel on appeal) described the main issue as being“whether there was a sexual assault happened [sic] or not”. He underlined that Mr. Ahpay acknowledged being at the bonfire and that hisstory and the complainant’s were “90 percent” the same. He described the case as involving “the classic scenario of he said/she said” andemphasized what he saw as gaps in the complainant’s story and stressed the detail in which Mr. Ahpay remembered the night in issue.

Healso questioned why the complainant would have washed and then thrown out the clothes that she had worn that night. [30] The prosecutor saw the key issues in essentially the same way. He noted that the complainant had testified that she hadattempted to walk away from Mr. Ahpay, that he had pushed her down and forced sexual intercourse on her. Mr. Ahpay, on the otherhand, had denied “any physical or verbal interaction with [the complainant] that night”. Thus, the prosecutor saw the case as a “credibilitycontest”. He highlighted the complainant’s state of emotional distress as observed by Cst.

Kyosev and during her testimony. He describedthe complainant’s testimony as being both credible and reliable, emphasizing her detailed memory of Mr. Ahpay’s appearance andexhibit P-2, the photograph of the area of trampled grass where the complainant had said the assault took place. As for Mr. Ahpay, theprosecutor underlined his drug and alcohol use and what he saw as its effect on Mr. Ahpay’s memory, saying his evidence was neithercredible nor reliable. [31] The trial judge rendered an oral decision.

He started by referring to the framework of analysis outlined in R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)], and then turned to Mr. Ahpay’s evidence. [32] In assessing Mr. Ahpay’s credibility, the trial judge began with the issue of Mr. Ahpay’s consumption of alcohol and drugs. Hereferenced Mr. Ahpay’s own testimony that he had consumed a significant amount of alcohol, in Wadena, at his aunt’s home in FishingLake and at the bonfire, and that he had shared joints with friends. The trial judge also noted that further, and importantly, Mr.

Ahpay hadacknowledged extensive use of crystal methamphetamine on the day of the alleged offence and prior to that to the point where he had notslept for the previous four or five days. Taking into account the alcohol, marijuana and crystal methamphetamine consumption, the trialjudge found that Mr. Ahpay had been “severely impaired” at the time of the alleged offence. He said this weighed heavily against Mr.Ahpay’s credibility. [33] The trial judge then turned to Mr. Ahpay’s behaviour at the bonfire. In this regard, he referred to the complainant’s evidencethat Mr.

Ahpay had seemed “not normal, like he was on something” and that she did not feel safe around him. The trial judge said theseobservations were corroborated by Mr. Ahpay’s evidence that he had been hallucinating about “shadow people” and had been “talking tothem, trying to scare them away”. The trial judge found that this aspect of Mr. Ahpay’s behaviour also weighed against the credibility ofhis version of what had happened on the night in question. [34] Moving on with his analysis, the trial judge indicated that Mr. Ahpay’s cross-examination had negatively impacted hiscredibility. He noted that Mr.

Ahpay had answered “no” to a question about whether, when using crystal methamphetamine, he did thingsthat he would not ordinarily do. The trial judge said that he could not accept this, especially in light of Mr. Ahpay’s own evidence abouthallucinating and interacting with shadow people. As well, the trial judge noted Mr. Ahpay’s response to a question in cross-examinationabout whether he had difficulty remembering things from times when he was on crystal methamphetamine. Mr. Ahpay had emphaticallyreplied “no” to that inquiry. The trial judge said he could not accept that answer and that it weighed against Mr.

Ahpay’s credibility. [35] As a final point with respect to Mr. Ahpay’s credibility, the trial judge referred to Cst. Kyosev’s testimony about Mr. Ahpay’scondition at approximately 8:30 p.m. on June 30. The constable had said that Mr. Ahpay had been under the influence of alcohol, “notnormal”, laughing inappropriately and had generated a “fail result” on a roadside tester. The trial judge said that this state of affairs, some20 hours after the alleged incident, also weighed against Mr. Ahpay’s credibility. [36] The trial judge rejected Mr. Ahpay’s testimony, summarizing his conclusion on that issue as follows:

When I consider Mr. Ahpay’s testimony, including his denials of anything, any inappropriate contact with [the complainant], I conclude I must reject it. I do this for several reasons, which have been outlined earlier, but to summarize: First, his level of intoxication or impairment by a combination of alcohol, marihuana and crystal meth was significant, so significant, in fact, that he admitted to hallucinations; second, Mr.

Ahpay, in cross-examination, deemed his consumption of alcohol and drugs could not impact his behaviour or his ability to recall; and third, notwithstanding his denial of the degree of intoxication he suffered, it’s clear that nearly 20 hours later, on the evening of June 30th of 2018, he was clearly not normal. This is corroborated and confirmed, of course, by the evidence of Constable Kyosev and the screening device. [ 37 ] The trial judge also found that Mr. Ahpay’s evidence did not raise a reasonable doubt about his guilt. [ 38 ] Next, the trial judge dealt with the complainant’s testimony.

He began by observing that it was consistent in two ways. First, it was internally consistent in that she had not in a material way contradicted any previous statements that she had made. Second, he observed that the complainant’s evidence appeared to be consistent with the evidence of the other witnesses, noting that much of her testimony was corroborated by Mr. Ahpay himself.

He said this weighed in favour of her credibility. [ 39 ] Dealing more specifically with the complainant’s evidence, the trial judge said that, while corroboration was not required, her evidence had been corroborated in various respects and that this added weight to her credibility. His comments in this regard sit at the heart of this appeal and I will return to them later in this decision. [ 40 ] The trial judge also addressed various issues that Mr. Ahpay’s counsel had raised about the strength of the complainant’s testimony.

He dismissed all of those concerns. [ 41 ] Against this background, and speaking to the counts in the indictment, the trial judge acquitted Mr. Ahpay on count 2, choking the complainant to commit sexual assault, finding it had not been proven that the choking, even if it had occurred, had been done with the required intent. He also acquitted Mr. Ahpay on count 3, assault. [ 42 ] However, the trial judge concluded that each of the elements of the count 1 charge, sexual assault, had been proven beyond a reasonable doubt. In convicting Mr.

Ahpay on that count, the trial judge said this: I return then to count number 1, and I look to the four elements, and these have also been helply [ sic ] provided to me by [defence counsel] in the Panasiuk case that he filed, at paragraph 40. [The prosecutor] also mentioned these four elements in his submissions. There is four elements required to prove guilt beyond a reasonable doubt of an offence under

Section 271 : The first one, that the accused intentionally applied force to the complainant; second, that the complainant did not consent to the force used; third, that the accused knew the complainant did not consent; and (

d) that the force the accused intentionally applied took place in circumstances of a sexual nature. I am satisfied that each of those four elements have been satisfied. I’m satisfied, based on the evidence, that each have been proven beyond a reasonable doubt. IV. ANALYSIS [ 43 ] Mr. Ahpay submits the trial judge erred in law in his approach to the evidence that was said to corroborate the complainant’s testimony. This submission has two elements: (

a) the trial judge erred in finding that his evidence corroborated the complainant’s testimony because the trial judge had rejected his evidence; and (

b) the trial judge erred in finding that various pieces of evidence corroborated a material aspect of the complainant’s testimony that he, Mr. Ahpay, had sexually assaulted her. [ 44 ] I will consider these arguments in turn. A. The overall status of Mr. Ahpay’s evidence [ 45 ] Mr. Ahpay submits that the trial judge could not have properly found his evidence to be corroborative of the complainant’s testimony because the trial judge had rejected his evidence in its entirety.

He says that, in light of the trial judge’s view of his evidence, it could have had no confirmatory effect or value. [ 46 ] This aspect of Mr. Ahpay’s argument involves a considerable over-reading of the trial judge’s decision. The trial judge did say, “I do not believe [Mr. Ahpay’s] evidence, I do not accept it”. However, when those words are considered in context, it is quite clear that the trial judge was not completely rejecting every word of Mr. Ahpay’s testimony. Rather, the trial judge was saying that he did not accept Mr.

Ahpay’s denial that he had assaulted the complainant as alleged. [ 47 ] This view of the trial judge’s intention is clear from the fact that, for example, he referred specifically to the complainant’s description of Mr. Ahpay as having been corroborated by Mr. Ahpay himself and observed that the complainant’s account of Mr. Ahpay’s bizarre behaviour at the bonfire had also been corroborated by Mr. Ahpay’s own description of his behaviour. The trial judge would not have made these sorts of references if he had rejected the entirety of Mr. Ahpay’s testimony. [ 48 ] In short, this aspect of Mr.

Ahpay’s argument cannot succeed. B. The other evidence said to be corroborative [ 49 ] Mr. Ahpay also submits the trial judge erred in law by treating various aspects of the evidence as being corroborative of a

material element or elements of the complainant’s testimony that he had sexually assaulted her. He says this evidence was simply notcapable of supporting or confirming the complainant’s account of what happened. In particular, Mr. Ahpay takes issue with the part of thetrial judge’s decision where the trial judge said this: I next turn to an overall corroboration of her evidence by other evidence.

There are a number of areas where her evidence is clearlycorroborated, and at this point I also hasten to add that while corroboration of her evidence is not required as a legal element in theCriminal Code, corroboration of her testimony assists her credibility. And in this regard, I look to, for example, corroboration provided byExhibits P-1, P-2, P-3, the photographs which support her version. P-2, for example, shows grass being disturbed in -- in the area [thecomplainant] said the assault occurred. This is compelling evidence. Further, the description of Mr.

Ahpay is largely corroborated byOfficer Kyosev and by Mr. Ahpay himself, for example, he was wearing work boots and the presence of bandannas. There is alsocorroboration in [the complainant’s] knowledge of Mr. Ahpay from Fishing Lake School. Finally, the diagram [the complainant] drew, P-4, is corroborated in many ways by the testimony of Mr. Ahpay. And as Mr. Jaggi candidly agreed, about 90 percent of the Crown’s casewas confirmed by Mr. Ahpay.

I note and conclude [the complainant’s] evidence was corroborated in several respects by other evidence.This, too, lends significant weight to her credibility. [50] The Crown does not respond directly to Mr. Ahpay’s argument. Instead, it submits that the trial judge’s corroboration analysiswas not the only factor that led him to decide the complainant’s testimony was credible in that he also found her testimony to be internallyconsistent, i.e., there was no contradiction between her evidence and any statement that she had made previously. The Crown also stressesthat Mr.

Ahpay’s consumption of alcohol and drugs undercut his credibility. None of this, of course, comes to grips with the issue raisedby Mr. Ahpay that must be resolved in this appeal: did the trial judge err in law by treating evidence as being corroborative of a materialpart of the complainant’s testimony about the sexual assault when it was not capable of being corroborative? [51] In considering the answer to that question, let me begin by underlining that the trial judge did not need to find that thecomplainant’s evidence had been corroborated in order to convict Mr. Ahpay.

The provisions of the Criminal Code that requiredcorroboration implicating an accused in sexual offence prosecutions have long been repealed.

Section 274 of the Criminal Code nowprovides as follows: If an accused is charged with an offence under

section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or286.3, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty inthe absence of corroboration. [52] Accordingly, and as he fully appreciated, it was open to the trial judge to find Mr. Ahpay guilty of sexual assault based solelyon the evidence of the complainant. Nonetheless, the trial judge proceeded, properly and as might be expected, to consider if there wasevidence that either supported or undermined the complainant’s testimony.

This is where the issues about corroboration now raised by Mr.Ahpay came into play. As noted, he submits that the trial judge erred by considering evidence to be materially corroborative of thecomplainant’s testimony that Mr. Ahpay had sexually assaulted her when that evidence was not capable of having such an effect. Hecontends the trial judge’s approach to the issue of corroboration therefore involved an error of law as per s. 686(1)(a)(ii). As a result, heseeks a new trial. [53] In making this submission, Mr.

Ahpay relies on R v G.G. (1995), (ON CA), 97 CCC (3d) 362 (Ont CA).There, the Ontario Court of Appeal dealt with a situation where Mr. G. had been convicted of the sexual abuse of his young children. Infinding Mr. G. guilty, the trial judge had relied on seven “factors” that she saw as bolstering or confirming the account given by one of thechildren as to what had happened. These factors were things such as the fact that the children spent most of their weekend visiting timewith Mr. G. in his apartment, that Mr.

G. had hesitated in answering a question about what sort of videos the children watched when theywere in his care and that, upon separation from his wife, Mr. G. had immediately wanted overnight access to the children. Justice Laskin,writing for the Court, examined each of these points and found that the trial judge’s use of all but one of the factors was logically flawed inthat they were not capable of bolstering or supporting the allegations of the child.

In ordering a new trial, Laskin J.A. held that the trialjudge had erred in law by considering evidence to be confirmatory of the child’s story when it was not capable of providing suchconfirmation. [54] With that by way of introduction, let me begin to deal with the substance of Mr. Ahpay’s submission by first noting that, inorder to properly assess the impugned paragraph of the trial judge’s decision, that paragraph must be seen and understood in the context ofthe decision as a whole.

I turn, therefore, to the business of establishing that context. [55] As noted above, the trial judge began his decision by referring to the framework of analysis outlined in W.(D.).

He explained itas follows: … Number 1, if the trier of fact believes the accused, the Court must acquit; number 2, if the trier of fact does not believe the accused, buthas a reasonable doubt, the Court must acquit; finally, in step 3, even if the Court does not believe the accused, and does not have areasonable doubt, the Court must then consider on the basis of all the evidence if it is convinced the Crown has proven its case beyond areasonable doubt.

Then, the trial judge proceeded to organize his analysis in keeping with this framework. [56] First, and as already explained above in some detail under the heading “The Trial Decision”, the trial judge considered Mr.Ahpay’s own evidence and rejected it. Next, the trial judge concluded that Mr. Ahpay’s evidence did not raise a reasonable doubt abouthis guilt. Then, continuing to follow the W.(D.) framework, the trial judge considered the complainant’s testimony in combination with thewhole of the evidence before him.

He started this part of his decision by saying as follows: … I’m still required to carefully consider the other evidence in the case and the evidence which I accept to determine if the Crown has metits obligation and proven the case beyond a reasonable doubt. I, therefore, must turn to a consideration of the evidence of [thecomplainant] and the other Crown witnesses. … It’s not enough to simply choose [the complainant’s] version instead of Mr. -- Mr. Ahpay’s version, but instead the Crown bears a very

heavy obligation to prove the case beyond a reasonable doubt. [ 57 ] Turning directly to the complainant’s evidence, the trial judge noted that it was consistent in two ways and that this consistency added to her credibility: So I turn to [the complainant’s] testimony. And the first observation I make is that it appears consistent in two ways: First, her testimony appeared to be internally consistent.

That is, she was not contradicted on previous statements that she made which -- with any conflicting evidence, and she was not contradicted in any material way; second, her evidence appeared to be consistent with evidence of other people. For example, much of what she testified to is corroborated by Mr. Ahpay. This weighs in favour of her credibility. [ 58 ] It was at this point in his decision that the trial judge dealt with what he called the “overall corroboration” of the complainant’s testimony in the paragraph of his reasons that is the subject of Mr. Ahpay’s submissions in this appeal.

For ease of reference, I reproduce that paragraph again here: I next turn to an overall corroboration of her evidence by other evidence. There are a number of areas where her evidence is clearly corroborated, and at this point I also hasten to add that while corroboration of her evidence is not required as a legal element in the Criminal Code , corroboration of her testimony assists her credibility. And in this regard, I look to, for example, corroboration provided by Exhibits P-1, P-2, P-3, the photographs which support her version.

P-2, for example, shows grass being disturbed in -- in the area [the complainant] said the assault occurred. This is compelling evidence. Further, the description of Mr. Ahpay is largely corroborated by Officer Kyosev and by Mr. Ahpay himself, for example, he was wearing work boots and the presence of bandannas. There is also corroboration in [the complainant’s] knowledge of Mr. Ahpay from Fishing Lake School. Finally, the diagram [the complainant] drew, P- 4, is corroborated in many ways by the testimony of Mr. Ahpay. And as Mr. Jaggi candidly agreed, about 90 percent of the Crown’s case was confirmed by Mr.

Ahpay. I note and conclude [the complainant’s] evidence was corroborated in several respects by other evidence. This, too, lends significant weight to her credibility. [ 59 ] Next, the trial judge dealt with three concerns that Mr. Ahpay had raised in relation to the evidence of the complainant. The first concern was that the complainant, as per her own testimony, was dazed at the time of the alleged sexual assault. The trial judge said that he nonetheless accepted the complainant’s testimony about what she recalled. Second, the trial judge addressed Mr.

Ahpay’s contention that, by washing and destroying her clothes after the alleged assault, the complainant was trying to hide something. The trial judge did not see the complainant’s actions in this way and accepted her explanation for what she had done. Third, the trial judge dealt with Mr.

Ahpay’s contention that there were “gaps” in the complainant’s testimony by indicating that he saw no material gaps in it. [ 60 ] All of this done, the trial judge ended his assessment of the complainant’s testimony by coming to a conclusion on the task that he had set for himself, i.e., the task of examining the complainant’s testimony in the context of the evidence as a whole. In accepting the complainant’s evidence about the sexual assault, he said this: … When I assess [the complainant’s] evidence, in the context of all the evidence, I accept her evidence. I find she was telling the truth.

I’m satisfied, beyond a reasonable doubt, that she accurately described the events on the night in question as best she could. [ 61 ] Having situated the paragraph impugned by Mr. Ahpay in the trial judge’s decision as a whole, let me begin the consideration of that paragraph by noting that the trial judge does not appear to have used the terms “corroborative” and “corroboration” in a technical sense.

In other words, I do not take him, as per R v Baskerville , [1916] 2 KB 658 (CA) , for example, to have said that the evidence under discussion was independent, confirmed the testimony in issue in a material particular and implicated Mr. Ahpay.

Rather, I understand the trial judge to have used “corroborative” and “corroboration” to mean “confirmatory” or “supportive”. [ 62 ] It also seems apparent that, when the trial judge was referring to various pieces of evidence as “corroborating” the complainant’s testimony and enhancing her credibility, he was not suggesting each piece of that evidence somehow directly confirmed a material feature of the complainant’s testimony that she had been sexually assaulted by Mr. Ahpay or directly reinforced the credibility of her account of the assault itself.

Rather, as the trial judge indicated at the beginning of the paragraph, he was examining the “overall corroboration of [the complainant’s] evidence by other evidence”. I therefore cannot accept Mr. Ahpay’s central suggestion that the trial judge erred in law by treating the consistency between and among the complainant’s testimony and the evidence of various other witnesses or exhibits as being directly confirmatory of a material aspect of the allegation that he had sexually assaulted the complainant.

A fair reading of the trial judge’s decision as a whole indicates that he did not reason in this way. [ 63 ] Nonetheless, it is also useful to look more closely at the particulars of Mr. Ahpay’s concerns about the paragraph in issue. First, he notes the trial judge stated that the complainant’s description of him was “largely corroborated by Officer Kyosev and by Mr. Ahpay himself, for example, he was wearing work boots and the presence of bandannas”. Mr.

Ahpay submits that this evidence says nothing that confirms the complainant’s account of having been sexually assaulted. [ 64 ] The evidence bearing on this point was straightforward. The complainant described Mr. Ahpay as wearing a black hat, black pants and a black hoodie. She said he had a camouflage bandana wrapped around his neck and that his long hair was tied up in a ponytail. She noted that he had tattoos on his arms. Mr. Ahpay himself testified that he was wearing a grey long-sleeved shirt, blue pants, a hat, steel-toed boots and some bandanas.

He agreed that he had shoulder-length hair worn in a ponytail. For his part, Cst. Kyosev said Mr. Ahpay was wearing a grey/silver long-sleeved sweater, baggy pants and big boots. The constable said that tattoos showed near Mr. Ahpay’s wrists from under his sleeves and that he had shoulder-length hair tied up in a ponytail and a camouflage-coloured bandana in one of his pockets. Thus, it can be seen that there was considerable consistency in the evidence concerning Mr. Ahpay’s dress and appearance. [ 65 ] As noted, Mr.

Ahpay submits that this consistency does not shed light on the question of whether he sexually assaulted the complainant because identity was not an issue. He points out that he acknowledged being at the bonfire and says the issue before the trial judge was whether he had followed the complainant on the path away from the fire and then assaulted her. The similarity of Cst. Kyosev’s, the complainant’s and his own description of his clothing, hairstyle and so forth is said by Mr. Ahpay to lend no weight to the complainant’s testimony on the question of whether she was sexually assaulted.

[ 66 ] This argument is based on something of a misunderstanding or mischaracterization of the issues facing the trial judge. In order to secure Mr. Ahpay’s conviction, the Crown had to prove not only that the complainant had been sexually assaulted but also that it was Mr. Ahpay who had committed the assault. It is true that Mr. Ahpay did not suggest that someone else had assaulted the complainant. Nonetheless, this was not a case where the accused acknowledged that sexual activity involving him and the complainant had taken place but that the activity had been consensual. Mr.

Ahpay denied following the complainant when she left the bonfire and denied having had sexual relations with her. Thus, in order to enter a conviction, the trial judge had to be convinced beyond a reasonable doubt that the complainant had been sexually assaulted and that Mr. Ahpay had perpetrated the assault. [ 67 ] In any event, I do not understand the trial judge to have reasoned that, because there was considerable consistency between the complainant’s description of Mr. Ahpay’s clothing and looks on the one hand, and Cst. Kyosev’s and Mr.

Ahpay’s own descriptions on the other, that this directly supported a material aspect of the complainant’s testimony that Mr. Ahpay had sexually assaulted her or that the evidence about Mr. Ahpay’s clothing and appearance somehow confirmed the fact of the assault. Rather, I understand the trial judge to have said only that the complainant’s evidence on these issues lined up with the other evidence about them and that this bolstered her credibility. [ 68 ] Second, Mr.

Ahpay underlines the trial judge’s statement in the impugned paragraph that “I look to, for example, corroboration provided by Exhibits P-1, P-2, P-3, the photographs which support [the complainant’s] version. P-2, for example, shows grass being disturbed in -- in the area [the complainant] said the assault occurred”. Mr. Ahpay acknowledges that exhibit P-2, the photograph of the trampled grass, does tend to confirm the complainant’s testimony about the sexual assault.

However, he submits that exhibit P-1, a photograph taken from the police cruiser of the area where the complainant said she was attacked, and exhibit P-3, a Google Maps aerial photograph of the Fishing Lake campground, added nothing to the assessment of the complainant’s testimony that she had been assaulted and was therefore wrongly taken into account by the trial judge. [ 69 ] Mr. Ahpay’s submissions about exhibits P-1, P-2 and P-3 are not convincing. Those exhibits were put into evidence one immediately after the other and are properly seen as something of a package.

Exhibit P-2 occupies, obviously, the heart of that package. The trampled grass depicted in it is consistent with the complainant’s account of having been sexually assaulted at the place where she says the attack was perpetrated. For its part, exhibit P-1 simply situates the area pictured in exhibit P-2 in the larger context of the overall location where the assault allegedly took place. As Cst. Kyosev said when exhibit P-2 was put before the Court, “this is the place which [the complainant] was pointing at from the car”. The same can be said of exhibit P-3, the aerial photograph.

It too is very much tied to exhibit P-2 and the complainant’s testimony about where she had been attacked. In presenting exhibit P-3 to the Court immediately after exhibits P-1 and P-2 had been entered into evidence, the prosecutor asked Cst. Kyosev to mark an X on exhibit P-3 to indicate the place where the photographs entered as exhibits P-1 and P-2 had been taken. Thus, overall, I see nothing improper in the trial judge’s treatment of exhibits P-1, P-2 and P-3 even if he did see them as being directly confirmative of the allegation of sexual assault. [ 70 ] Third, Mr.

Ahpay refers to exhibit P-4, the diagram drawn by the complainant of the general area where the assault was said to have taken place. It shows, among other things, the location of the bonfire, trees, roads, and the path. The trial judge said that the diagram was “corroborated in many ways by the testimony of Mr. Ahpay”. Mr. Ahpay says that the fact the complainant was able to produce a diagram of the campground that meshed with his evidence says nothing about the truthfulness of her testimony that he had sexually assaulted her.

This is no doubt correct but I do not take the trial judge to have been suggesting that the apparent accuracy of the map directly reinforced the complainant’s testimony that Mr. Ahpay had committed a sexual assault. I take him to have meant only that the complainant’s diagram of the campground appears to have been accurate. [ 71 ] Fourth, Mr. Ahpay refers to the trial judge’s conclusion that “[t]here is also corroboration in [the complainant’s] knowledge of Mr. Ahpay from Fishing Lake School”. On this point, the complainant testified that Mr.

Ahpay had been in a higher grade than she had been in at Fishing Lake School and that she did not know him personally. Rather, she just knew of him. The complainant also testified that, on the night in question, her friend had told her who Mr. Ahpay was but, that said, the complainant also thought that she would have recognized Mr. Ahpay anyway. In any event, Mr. Ahpay’s point is that the complainant’s ability to recognize him because they had gone to school together does not reinforce her testimony that she had been sexually assaulted.

In this regard, he again stresses that he acknowledged being at the bonfire and, therefore, that identity was not an issue. [ 72 ] This line of argument is also based on a somewhat faulty premise. As indicated above, to secure a conviction, the Crown had to prove both that the complainant had been sexually assaulted and that Mr. Ahpay had committed the assault. Although the point was perhaps expressed too summarily by the trial judge and not as precisely as might be desirable, I take him to have been effectively saying in this aspect of his decision that the complainant’s ability to reliably recognize Mr.

Ahpay as being the person who attacked her was bolstered by the fact that she had known him prior to the alleged attack. That sort of reasoning is unobjectionable. In any event, I certainly do not understand the trial judge to have reasoned that, because the complainant knew Mr. Ahpay from school, it was more likely that her account of the assault, or some material aspect of that account, was true. [ 73 ] Fifth, Mr. Ahpay points to the trial judge’s comment that “90 percent of the Crown’s case was confirmed by Mr. Ahpay”. Mr.

Ahpay acknowledges that this observation is correct in the rough sense that his account of what happened at the bonfire, who was at the bonfire, how he had acted at the bonfire and so forth lined up reasonably closely with the complainant’s description of the evening. He underlines, however, that the complainant’s story and his story diverged completely at the point where the complainant said that she left the bonfire to go home. Mr.

Ahpay submits that the fact that his and the complainant’s accounts of the evening generally lined up until the time when the assault was said to have taken place says nothing about whether the complainant’s account of the alleged crime should have been accepted. [ 74 ] Again, there would be merit in Mr. Ahpay’s argument if the trial judge had reasoned that, because 90 percent of the complainant’s evidence corresponded with Mr. Ahpay’s evidence, the fact of the alleged sexual assault was somehow confirmed. But, this is not how I understand the trial judgment.

I take the trial judge, in the course of considering the complainant’s testimony in the context of the evidence as a whole, to have observed that 90 percent of her testimony and Mr. Ahpay’s testimony was consistent and that, accordingly, that this part of her evidence was confirmed. [ 75 ] In the end, although the trial judge’s oral decision could perhaps have been expressed more clearly, I do not understand him to have made the error alleged by Mr. Ahpay, i.e., I do not understand him to have seen evidence as confirming a material aspect of the

complainant’s testimony about the sexual assault when that evidence was not capable of being confirmatory. V. CONCLUSION [ 76 ] For the foregoing reasons, I conclude that Mr. Ahpay’s appeal must be dismissed. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Whitmore J.A.” Whitmore J.A.