PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #40150930 HER MAJESTY THE QUEEN G.G.H. S.C. Carter, P.C.J M. Friesen, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. E.B. Stephens, STEPHENS, ARNOT LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. 1. The accused is charged with offences contrary to Sections 271(1) and 153 of the Criminal Code. The sexual assault and touching allegations allegedly occurred between January 15, 1998 and March 31, 1999. 2. The evidence of the complainant was that the accused touched her numerous times on her vagina and breasts. In all cases the touching was over top of her clothing. On one occasion she said that he “grabbed my butt”. 3. The complainant, her mother, her siblings and the accused all lived in house here in Prince Albert, Saskatchewan. The complainant’s bedroom was in the basement of the house adjacent to the room where the family watched TV. There was couch or love-seat in that room. The accused often slept on this couch. Sometimes he slept down there because he was angry with the complainant’s mother for not wanting to have sex with him. Sometimes he slept down there because of her tossing and turning in bed due to her arthritic pain. E.V., the complainant’s mother, said that the accused slept downstairs about two-thirds of the time. 4. The complainant, who was between the ages of 13 and 15 during the time frame in the Information, went to bed very late. Indeed, her mother testified that she often stayed up at least until midnight. The complainant often sat and watched television at night. Most of the allegations occurred in this room. 5. The complainant testified that the accused constantly came up to her, from behind, or in front, or sat beside her and touched her breasts or vagina. She said that he would even grope at her in this way when she was coming to and from her bedroom. He would accompany this conduct with statements concerning how sexy her legs were and how good she would be in bed. She would tell him to stop touching her and he would then stop but day or two later he would start at her again. He always used one hand. The touching was always over the top of her clothes. The touching only lasted seconds each time ending as soon as she said stop. All of this began after her brother, [E.] was born in October of 1997. 6. She recalled specific incidents of touching. In September 1998, she said that the accused got on top of her while she was on the couch watching television. He talked of her legs and how good she would be in bed. She threatened to scream (which would have alerted her mother) and the accused got off. After this incident she recalled the accused sitting down beside her as she was watching TV. He asked her to touch his private parts. She told him to go away. 7. She also recalled an incident in the kitchen her mother was out of the house and she was trying to make some lunch. She testified that the accused came over and “grabbed my butt”. She told him to stop and he did. 8. In March of 1999, the complainant called the police. She testified that the accused had become coming into her bedroom while she slept. She said that she woke up feeling him touching her vagina over top of her clothes. As soon as she woke up the accused “ran from the room as fast as he could”. She testified that this happened more than once. 9. No threats were ever made by the accused toward the complainant although she testified that at one time, after he and her mother had had an argument, he threatened to leave and take her baby brother, [E.] with him. That is the reason which she gave to the court for never saying anything about any of this to her mother. 10. The complainant’s mother, E.V., testified that she met the accused in May of 1996. Prior to this she had been recovering from an abusive relationship with her ex-husband. The court learned that when she first met the accused the children, including the complainant, did not live with her visiting only on the weekends. The accused began to live with her and he helped her to stabilize her life and home enough to allow the children to come back and live with her. She said that the accused tried to help her out with the children like step-father would do. He spent time with them. He also did laundry and housework. He backed her up in her disciplining of the children. At times he would work himself up by yelling at the children. On these occasions she said that she feared that he might start hitting them but he never did. 11. E.V. became pregnant. She gave birth to [E.]. She recalled coming home with the little baby on October 29 or 30 of 1997 to find the accused had been drinking for two days celebrating the birth of his son. The complainant began to laugh at the accused’s drunken stumbling. The accused then lunged at her and said “give me blow job”. E.V. became upset at this. She sent her daughter to bed. The next morning she told the accused that if he ever said anything like that again she would kick him out. The accused “looked kind of shocked”. 12. E.V. said that after this, her daughter’s behaviour and demeanor began to change. She began to complain of headaches. She had been an honour student but her grades began to fall and kept falling. By the end of the school year, June 1998, she had just barely scraped by. By next fall, now in grade 8, she constantly complained of being sick. She quit school altogether and didn’t return until she called the police in March 1999. 13. During this period of time, E.V. said that her daughter also became very self-conscious of her body. She wore only dark clothes and always covered herself up. She took to wearing t-shirt over her one-piece bathing suit. She became withdrawn and depressed. 14. At one point she said that her daughter pulled knife on E.V.’s best friend’s son. After this event, E.V. got medical help for her. psychiatrist placed her on anti-depressants which helped control her anger. Throughout all of this, E.V. said that she never had any concerns about the accused and his behaviour toward her daughter. He would often walk into her bedroom without knocking but he did that to other children as well. Although he was severely drunk as related above, she could only recall only one other time when he was that drunk. In fact, she said that it was rare for him to be drunk. Alcohol was not problem. It was only after the complainant called the police that the accused spoke to her about “provocative” behaviour on the part of the complainant. Her daughter never said anything to her. 15. The accused testified that he only touched the complainant’s buttocks once when she was reaching for something above the stove and began to fall. He said that he touched her breasts once when he took [E.] out of her arms against her wishes. He said that he fell on her once when she was lying on the couch. He said that he fell because he tripped over her younger sister, [P.], who was lying on the floor. He denied ever touching the complainant on her vaginal area or ever inviting her to touch him. 16. The accused testified that on few occasions the complainant “mischievously flaunted” herself in front of him. The first time that this happened was in 1996. E.V. was living in an apartment. The children were over for the weekend. They were all watching the movie “Raiders of the Lost Arc”. The complainant bent her legs up to her chest exposing her genitals. The second time was in 1998. The complainant had had shower upstairs. She came downstairs wrapped only in towel whereupon he said that she began to expose herself to him. 17. He went on to testify that on four occasions (July, September, October of 1998 and January of 1999) the complainant opened the bathroom door and watched as he took shower. He said that he told E.V. about this and told her to talk to her kids about what is right and wrong. 18. He said that there were also four occasions when the complainant walked into the bedroom and watched him and E.V. as they were having sex. Once he and E.V. were lying naked on the bed having just finished having sex and she walked right in. He had to throw her out of the bedroom. He recalled E.V. and the complainant struggling in the bedroom because the complainant refused to leave. The struggle took place in March of 1999. 19. As to his reasons for being in the bedroom, he said that he had to go in in order to collect dishes, plates and cups and that the reason he ran out of her bedroom was because he was chasing kittens. He insisted that he always knocked and said “I want your dishes”. 20. Deciding upon guilt or innocence in criminal case is not matter of choosing whom to believe based upon who appears to be most likely telling the truth. If an accused is to be found guilty it must because the trier of fact has been convinced beyond reasonable doubt of his guilt. Even when an accused’s testimony is not believed, he still must be acquitted if his evidence raises reasonable doubt or if the remaining evidence raises such doubt. Thus although the complainant and E.V.’s demeanour in the witness box, their careful, concise and clear answers were in some contrast to the accused’s must look to the evidence to determine if there is evidence which confirms or tends to confirm her testimony: see R.v. S.(T) 1995 CanLII 3957 (SK CA), [1995] 40 C.R. (4th) (Sask. C.A.). The following evidence tends to confirm the complainant’s testimony: 21. Clearly the accused had an opportunity. He often slept on the couch in the basement television room. Most of the incidents complained of happened in that room. 22. The accused also had the time in the sense that the complainant went to bed late in the evening or in the early morning hours at time when most of the household would be asleep. 23. The accused admitted that he came into her room (he said he thought she was awake) and ran out. He said that he was chasing kittens. That explanation sounded too contrived. No one had mentioned cats or kittens before although the accused did say that one of his jobs in the home was to clean up “dog shit”. 24. The accused said that he tried to or did tell E.V. about the “mischievous flaunting” and the shower-watching, but that she said that she was too tired or stressed out to deal with it. This does not accord with both the evidence of both E.V. and the accused about the drunken “blow job” request. She took that matter seriously and told the accused that he would be out on the street if it ever happened again. She would have taken any flaunting or shower-watching seriously as well in my view. The following evidence would have confirmed the complainant’s evidence if it had been supported by expert testimony: 25. The complainant’s evidence shows an escalating pattern of intrusive behaviour by the accused. When the behaviour finally escalated to groping at her in the bedroom while she was sleeping, she called the police. 26. Escalation of this type of activity is, as recall, characteristic “grooming” behaviour on the part of the sexual predators. However, do not believe that am entitled to take judicial notice of this. An expert witness in the area of sexual behaviour would have been extremely helpful to the court. 27. Similarly there is evidence of the complainant’s depression or withdrawal. Her sliding school performance, anger and self consciousness. This could very well have been because of the escalating assaults by the accused. However, another explanation may be her passage through puberty into society, that at least for girls, seems to put greater emphasis on body image as opposed to brains. An expert in the field of adolescent behaviour may have been of great assistance to the court here as well. The following evidence either does not confirm the complainant’s evidence or is capable of confirming the accused’s evidence: 28. The accused admits to touching her buttocks once, her breasts once, and to have been on top of her once. He has explanations for each of these incidents. One is that he fell on her. This seems bit far-fetched but am not prepared to say that it did not happen. The other explanations are not outlandish. They might be true. The “blow job” request obviously happened but none of the allegations concerned oral sex and in any event the accused was drunk. He was apparently rarely drunk. None of the complainant’s allegations involve alcohol nor was drunkenness alleged to be factor. 29. The absence of any complaint by the complainant to her mother might be consistent with her fear that the accused would leave and take the baby with him but the lack of complaint is also consistent with the accused’s innocence. 30. The “knife pulling” incident which resulted in anti-depressants for anger control cuts both ways when considered in conjunction with the alleged struggles in the bedroom. Perhaps his behaviour drove her to lose her temper. Perhaps her temper and dislike of the accused drove her to allege the behaviour against person whom she said she did not like and who she did not want living at the house. 31. In my view it would be very dangerous to convict the accused on the evidence before the court. Although his explanations for touching and his evidence of the complainant’s behaviour are at odds with the Crown’s evidence, there is simply not enough confirmatory evidence surrounding the allegations for there to be proof of guilt beyond a reasonable doubt. Although I am suspicious of his evidence I have compared and contrasted it with that of the Crown’s and, having done so, I am unable to find him guilty beyond a reasonable doubt. 32. The accused is, therefore, not guilty of either count on the Information. DATED this 20th day of December, A.D., 1999, at the City of Prince Albert, in the Province of Saskatchewan. S.C. Carter, Provincial Court Judge
The accused was charged with sexual assault and touching contrary to s.271(1) and 153 of the Criminal Code. The alleged offences occurred in the complainant's home when she was between the ages of 13 and 15. HELD: The accused was found not guilty on both counts. 1)There was insufficient confirmatory evidence for proof of guilt beyond a reasonable doubt. The evidence showed an escalating pattern of intrusive behaviour by the accused who admitted to touching her on two occasions and to have been on top of her once. His explanation that he fell on her was farfetched but the other explanations were not outlandish. None of the complainant's allegations involved alcohol nor was drunkenness alleged to be a factor. The evidence of the complainant's depression or withdrawal could have other explanations.