IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. B.H., 2006 NSSC 374
Date: 20061120
Docket: 260281
Registry: Yarmouth
Between:
Her Majesty the Queen
v.
B. H.
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Restriction on publication: Section 486(3) of the Criminal Code of Canada
Judge: The Honourable Justice Gordon A. Tidman
Heard: November 20, 2006, in Comeauville, Nova Scotia
Decision: November 20, 2006 (Orally)
Written Release
Of Oral: December 22, 2006
Counsel: Pierre Muise, for the Crown
Philip J. Star, QC, for the Defence
Tidman, J:
[1] There are two charges against the accused. The first charge is one of exploitation and that charge reads that the accused:
On or about the 30th day of August, 2003; at, or near *, in the County of Yarmouth, in the Province of Nova Scotia, being in a position of trust or authority towards M. T., a young person, did for a sexual purpose, invite, counsel or incite M. T., a young person, to touch directly a part of his body, to wit: his penis, contrary to Section 153(1)(b) of the Criminal Code.
[2] Section 153(1)(b) of the Criminal Code provides that:
Every person commits an offence who is in a position of trust or authority towards a young person who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploited of the young person, and who
(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.
[3] And any person who commits that offence is guilty of an indictable offence.
[4] There is a further subsection under sexual exploitation which provides as follows and this is subsection (1.2) re: inference of sexual exploitation. It states that:
A judge may infer that a person is in a relationship with a young person that is exploitive of the young person from the nature and circumstances of the relationship including (a) the age of the young person (b) the age difference between the person and the young person, the evolution of the relationship and the degree of control or influence by the person over the young person.
[5] That refers to sexual exploitation but gives some assistance to the court in making a determination whether there is a position of trust or authority between the two persons, the accused and the complainant.
[6] In this case the age difference between the two is substantial, approximately 23 years. On the other hand, the activities the complainant has engaged in with respect to her drinking habits would indicate that she was acting well beyond her years. With respect to the activities of the accused, although in actuality is 38 years, his mind’s age is that of a juvenile, in the court’s view. The accused has children in their late teens. The relationship between he and his children appears to be more like that of brothers than parent/child. He has apparently on occasions been simply hanging out with his children and the children’s friends, driving around and if not drinking himself, at least allowing his children to drink alcohol, while doing so.
[7] The nature of the relationship between the accused and the complainant seems to be that, from the complainant’s perception, as a friend of her contemporaries, which would include the son of the accused.
[8] There is no indication in the evidence that the accused had ever exercised any degree of control or influence over the complainant. This is not a case of a teacher/student or an employer/employee relationship or anything close to such a relationship.
[9] In fact, the complainant says that she did not consider the accused as a person having authority over her and there was no indication that the accused considered that he was in a position of either authority or trust in relation to the complainant.
[10] Mr. Muise, for the prosecution, suggests that in giving the complainant a ride that he was entrusted with delivering her safely to her destination but that, of course, would be true with two friends of equal age or if the accused was driving anyone to a destination. He would be in some sort of position of trust to get them there safely.
[11] The court is not satisfied that a 23 year difference in age between the complainant and the accused is, in and by itself, sufficient to establish a position of trust or authority and in any event, the other circumstances to which the court has referred mitigate against such a relationship.
[12] Therefore, I am not satisfied beyond a reasonable doubt that the accused has committed a Section 153(1) offence, and I find him not guilty of that offence.
[13] Now, dealing with the second charge against the accused, it reads that the accused:
On or about the 30th day of August, 2003; at, or near *, in the County of Yarmouth, in the Province of Nova Scotia, did commit a sexual assault on M. T., contrary to Section 271(1)(a) of the Criminal Code.
[14] Section 271(1)(a) of the Criminal Code provides:
Every one who commits a sexual assault is guilty of
(a) an indictable offence...
[15] Sexual assault is not defined as such under the provisions of the Criminal Code but over the years the case law has established that there are three elements to the offence. One there must be a touching by the accused of the complainant. Two, the touching must be of a sexual nature and three there must be an absence of consent by the complainant to the touching.
[16] I think it unnecessary at this time to go through all of the testimony of the witnesses who appeared but there are essentially three key witnesses. The fourth was the mother of the complainant who simply established the age of the complainant and testified to the age of the accused.
[17] The other witnesses were the accused and the complainant and Ms. N. who gave evidence on behalf of the defence. The complainant’s evidence essentially, with respect to the sexual assault, is that the accused had attempted on two occasions to unbutton the top button of her jeans and had touched her on the top of her thigh or on the side of her thigh during the time that these attempts were made.
[18] The accused denies doing so and says that he wanted to engage the complainant in oral sex or wanted her to perform oral sex on him but was not interested in having sexual intercourse or in having any other sexual contact with her at all.
[19] The complainant’s evidence is also that she had consumed five or six beer immediately before this alleged assault took place and that she had also taken several swigs of a bottle of rum that was in the car with the boys and the accused.
[20] The complainant subsequently gave a videotaped statement to the R.C.M.P. She also testified at a preliminary inquiry as well as giving evidence here this morning.
[21] There were several inconsistencies in those various statements. One in particular; although this event was alleged to have taken place on August the 30th, it was that the complainant’s evidence that she recalled that there was snow on the ground at the time because she had slipped going up the steps at the home where she alleges she was babysitting at the time.
[22] She did say that she did confuse that occasion with another event but, in view of the state of intoxication of the complainant at that time, the court is left to suspect whether the events that she described, the essential events that she described today may have actually taken place at some other time.
[23] The accused’s evidence, on the other hand, leaves the court with many questions as to the complete veracity of his testimony while on the stand.
[24] Ms. N. gave her evidence in a straightforward way but in view of the relationship between herself and the girlfriend of the accused, I am not satisfied that it wasn’t coloured to some extent because of that relationship.
[25] Both counsel have referred to R. v. W.D. as being the test that a judge must put to himself or herself in considering evidence where the evidence of the complainant and the accused is at odds. It’s not necessary to refer to the first two parts of that test.
[26] I think it’s sufficient to say that the third part of that test is that the court must be satisfied on all of the evidence as a whole, that the accused is guilty beyond a reasonable doubt before the court can make such a finding.
[27] On the basis of the whole of the evidence that I’ve heard today, notwithstanding that some of the accused’s evidence lacks credibility, I am not satisfied beyond a reasonable doubt that the accused is guilty of that second charge and I find him not guilty.
[28] I should emphasize to all present in the court that it’s not a question of believing or disbelieving the accused or complainant, it’s being satisfied on the basis of all the evidence whether the accused is guilty beyond a reasonable doubt. Mr. Muise has offered to the court the position that why would a complainant come to court and expose herself to everything that she’s exposed to if it did not happen.
[29] Unfortunately, that may be so but the court can’t speculate on such a proposition because who knows why people do anything. I think I’ve been around long enough to know that people do some strange things and some of them are quite unimaginable.
[30] So, in the final aspect, I am not satisfied of the accused’s guilt beyond a reasonable doubt as I have earlier said.
Tidman, J.