J. This fiat is subject to an Order pursuant to s. 486(3) of the Criminal Code that there be no publication of the complainant's name or of any evidence that would identify the complainant in any media. Q.B.CR.N.J. A.D. 1995 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN G. D. I.J. Cardinal for the Crown R.T. McCann for the accused JUDGMENT (ORAL) BAYNTON J. September 27, 1995 The accused is charged with sexually assaulting thecomplainant between the dates of October 22, 1986 and March31, 1988 at Beardy's Indian Reserve. The accused was born on October 22, 1968 so that he ceased to be "young person" within the meaning of the Young Offenders Act, R.S.C. 1985, c. Y-1, on the first date specified in the indictment. The Issue The sole issue before me is whether it has been proven beyond reasonable doubt that the sexual assaults alleged occurred on or after October 22, 1986, the date that the accused became an adult. The determination of the specific dates of multiple sexual assaults of children over period of time is not usually of critical importance, but it is in this rather unique case. Under s. of the Young Offenders Act, Youth Court Judges have exclusive jurisdiction respecting offences committed by persons while under the age of 18 years. The Court of Queen's Bench accordingly has jurisdiction only when such matter is transferred to it pursuant to s. of the Act. The case before me has not come to me by way of transfer from the Youth Court. concurrent proceeding respecting these same events is pending in Youth Court. The Facts Neither the complainant nor the accused are particularly credible as witnesses, each having been convicted of numerous criminal offences involving deceit, dishonesty, and disrespect for the law. Each has spent considerable amount of their young lives in jail. found the complainant to be more credible witness than the accused. She did not attempt to embellish or exaggerate her testimony even though she had the opportunity to do so. She is now 19 years of age. She had child shortly after she turned 14 years of age from more recent abusive relationship and is now trying to come to grips with what was done to her during her childhood. The accused is now 26 years of age and has two children. He quite frankly admitted that he had attempted to have sexual intercourse with the complainant when she was or 9, but that he was not able to perform the act. He claims that he was under 14 at that time and that he subsequently moved from the Beardy's Indian Reserve to Prince Albert while he was still young person and had no further contact with the complainant. He accordingly acknowledges that he sexually assaulted the complainant on that one occasion but claims it occurred long before he became an adult. He characterizes the incident as attempted intercourse during youthful experimentation. He also denies any subsequent acts of improper touching. found the accused's testimony to be largely self- serving. have carefully considered the exhortation in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742 in concluding that his version of the events could not reasonably be true. Nor did his testimony leave me with any reasonable doubt that he had forced sexual intercourse with the complainant in the fashion she described and that he touched her on her vagina on one or two subsequent occasions. There is however no convincing evidence before me that any of the incidents of sexual assault committed by the accused occurred on or after October 22, 1986, the date he became an adult. The complainant's evidence is clear that the sexual intercourse took place while she was 9. She turned 10 on February 5, 1986, and was almost 11 on the first date specified in the indictment. Although the one or two incidents of improper touching took place after the sexual intercourse incident, she quite frankly admitted that she could not remember her age or grade in school when those incidents occurred. All she could remember was that the touching had stopped when she was 11. The age of 11 had significance to her only because this was her age when she moved from Beardy's Indian Reserve to Saskatoon. Jurisdiction As I do not have jurisdiction over any sexualassaults committed by the accused while he was a young person,the Crown quite properly declined to ask for an amendment ofthe dates specified in the indictment to conform to theevidence. Although I am satisfied beyond a reasonable doubtthat the accused sexually assaulted the complainant betweenthe dates of February 5, 1985 to February 4, 1986, I am notsatisfied that he did so as charged after he become an adulton the 22nd day of October, 1986. One or two of the incidents of touching might have occurred after this October 22, 1986 date, but such finding would be based more on conjecture than on proven fact. The accused is acquitted of the charge in theindictment.
The accused was charged with sexual assault and was tried in the Court of Queen's Bench. The evidence at trial indicated that the alleged acts had occurred prior to the accused becoming an adult. He had not been ordered transferred into adult court under s.16 of The Young Offenders Act. HELD: Accused acquitted. 1)The Judge was satisfied beyond a reasonable doubt that the accused had sexually assaulted the complainant. 2)Because the complainant's evidence suggested that the assault occurred while the accused was a young offender the Judge concluded that the Court of Queen's Bench was without jurisdiction in the matter.