IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. H.R.S., 2005 NSSC 193
Date: 20050519
Docket: CRAM 232201
Registry: Amherst
Between:
Her Majesty the Queen
v.
H.R.S.
|
|
|
DECISION |
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice J.E. Scanlan
Heard: 19 May 2005, in Amherst, Nova Scotia
Written Decision: 11 July 2005
Counsel: Mr. D.A. Fairbanks, Q.C., for the crown
Mr. Jim O’Neil, for the respondent
By the Court:
[1] The accused is charged with three counts as set out in the indictment.
THAT HE between the 18th day of January, 1973 and the 7th day of May, 1997 at or near Amherst, in the County of Cumberland, in the Province of Nova Scotia, did commit indecent assaults on T. S., a female person contrary to the provisions of section 149 of the Criminal Code;
AND FURTHERMORE at the same time and place aforesaid, did commit acts of gross indecency with T. S. to wit: fondle her vagina, force her to perform fellatio and masturbate him, contrary to the provisions of section 157 of the Criminal Code;
AND FURTHERMORE at the same time and place aforesaid, did attempt to have sexual intercourse with T. S., a female person not his wife, who at the time was under the age of fourteen years contrary to the provisions of section 145 of the Criminal Code.
[2] There really aren’t many issues in terms of identity, place and dates. The only issue is as to whether or not the incidents as alleged in the indictment did in fact occur. It boils down to an issue of credibility.
[3] The accused in this case did take the stand. I am reminded of and apply the principles as set out in R. v. D.(W.) and keep that in mind throughout. As I have indicated, one of the main issues in this case is as to whether or not there is credible evidence to support the convictions, or indeed to support the accused’s allegation that the incidents did not happen.
[4] There was opportunity. That is clear by the accused’s own admission. He was in the * Street apartment on repeated occasions throughout 1973. I don’t know that I have to resolve whether he slept on the couch or slept in the bed. He went into a house where the mother, S. M. as she now is, would go to bed leaving the accused and the complainant’s father to stay up and drink until the complainant’s father passed out from intoxication. Whether he slept on the couch or in the spare bed, it’s not entirely clear. What is alleged by the complainant is that she would awaken and have the accused standing over her. The first time this occurred he was asking her to help him with his belt. She reached up only to realize that it was not his belt that he needed help with. She reached up in the dark and his pants were undone and the accused allowed her to put her hand on his penis. When she tried to pull it away he didn’t let her. She said that he then used her hand to masturbate him. This occurred on more than one occasion. She said three times for sure that she could remember distinctly, but there were other parts which she couldn’t remember, and she just pieced things together.
[5] That piecing together of the events is in and of itself, is very understandable. After some 30 years you would not expect her to remember all of the events. Any one of the events individually or all of the events may tend to blend into one another.
[6] In terms of opportunity, I would note that the accused was around, not only in terms of drinking with the complainant’s father, but in fact ended up entering into a relationship with the complainant’s mother, now S. M.. This relationship began actually before the complainant’s father and her mother broke up. It later developed into a full blown common-law relationship, first at * Street and then moving on to * Street.
[7] The evidence is that when the parties moved to the * Street address things started to happen again as between the accused and the complainant. In the words of the complainant, they progressed. She referred to incidents, according to her version of the evidence, where he put his penis inside her mouth. Sometimes he ejaculated, and sometimes when it was not in her mouth. Again she does not remember exactly how often it happened, but she says it was more than five times.
[8] She remembers the last incident where she says she was truly scared. She says it was in her mother’s bedroom in the * Street address. It started with masturbation. She said she then was pushed on the bed. He fondled her vagina and he tried to penetrate her with his fingers. Then he was on top of her. She said she felt pressure of his penis against her vagina. She described a smothering feeling. She referred to the fact that he was as big as he is now, or he was a large man. There is evidence, and I refer to exhibit 4 which is a photograph, taken around that time. It shows that certainly he was a relatively big man when you compare it to this girl who is portrayed in exhibit number 2. And I can only say she was a waif of a girl. She was not very big. Even as Ms. R. sits here in court today, she’s not terribly big in stature. Back in 1974 she was even smaller.
[9] Ms. R., the complainant, talks of keeping it to herself, not saying much to anybody. She does explain that when she was at a birthday party with her friends in the apartment across the hall, she became hysterical. It was to the point where the mother of the young child in that apartment called the complainant’s mother at work and she came home. Her mother could not in fact deal with her, or get her to talk about what was going on. Eventually she ended up slapping the complainant in the face. And it was at that time that the complainant says she told her mother what had occurred.
[10] I don’t use this evidence as proof of the incident having occurred. However, it is relevant to what happened next in terms of why the complainant’s mother then went to the accused and confronted him with the allegation. The complainant’s mother did in fact confront him with the allegation. She said at that time, when she confronted the accused he acknowledged that he did in fact do as the complainant had indicated. Of note as well, she says she confronted him again with the same allegations around Christmas of ‘77 I believe it was. I accept that the accused again admitted that he had done what is now alleged. Asked how could he, the response was, “It’s not like she was my daughter”.
[11] The accused takes the stand and simply denies that the incidents ever occurred. It’s important to note that at no time does the burden shift to the accused. He never has to prove his innocence. The burden is on the crown to prove beyond a reasonable doubt that the acts as alleged in fact occurred. Again, I refer to the R. v. D.(W.) case, the three part test that’s set out therein. I say simply, I do not believe the accused in this case. It is not a matter of choosing between two different versions of the events but after considering the evidence as a whole I do say that I accept the evidence of S. M. and the fact that she confronted the accused on two separate occasions with these allegations. I also accept her evidence that the accused admitted on both of those occasions that the incidents as alleged did in fact occur. He made that admission because in fact they did occur.
[12] Based on the totality of the evidence, I am satisfied that T. S. came to court, recounted the incidents as they did in fact occur, and as later admitted by the accused. I am satisfied as well that the incidents in fact constitute the offences as charged. I am satisfied that the acts were indecent and they were an assault. I am satisfied he did in fact fondle her vagina, forced her to perform oral sex and to masturbate him, and that he did attempt to have sexual intercourse with her. I am satisfied as to her age at the time of the offence as being under the age of 14 years. I am satisfied all of the elements of the offence as charged have been proven beyond a reasonable doubt and I find the accused guilty on all three counts.
J.