SUPREME COURT OF Nova Scotia
Citation: R. v. B.H.C., 2021 NSSC 68
Date: 20210226
Docket: CRAT No. 495095
Registry: Antigonish
Between:
HER MAJESTY THE QUEEN
v.
B.H.C.
DECISION
Restriction on Publication: Sections 486.4 & 486.5 of the Criminal Code
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Judge: |
The Honourable Justice N.M. Scaravelli |
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Heard: |
January 26, 2021, in Antigonish, Nova Scotia |
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Decision: |
February 26, 2021 |
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Counsel: |
Jonathan Gavel, for the Crown Ellen Burke, for the Accused |
Order restricting publication — sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
Mandatory order on application
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
Victim under 18 — other offences
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
Mandatory order on application
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
Child pornography
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
Limitation
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
Order restricting publication — victims and witnesses
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Justice system participants
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Offences
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
Limitation
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
Application and notice
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
Grounds
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
Hearing may be held
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
Factors to be considered
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
Conditions
(8) An order may be subject to any conditions that the judge or justice thinks fit.
Publication prohibited
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.
By the Court:
[1] B.H.C. is charged with two offences: that he did have sexual intercourse with a female person who was not his wife without her consent, contrary to former Section 143 of the Criminal Code and at the same time did commit indecent assault contrary to former Section 149 of the Criminal Code. The offences were alleged to have occurred at Bayfield, Nova Scotia between January 1, 1976 and December 1, 1977.
Evidence
[2] The complainant testified that she was eight years of age when she moved into the foster parents’ home. She described the residence as a two-storey, four bedroom home. Living in the home at the time were her foster parents, two foster brothers (W.D. and N.D.) and two foster sisters. The complainant slept in the same upstairs bedroom as her two foster sisters, D.C. and M.G..
[3] The complainant stated she first met the accused when he was dating her foster sister, D.C.. They eventually married and moved into the home. The complainant was around 13 at the time. The accused and D.C. slept in an upstairs bedroom with their infant son. The complainant had a good relationship with the accused both before he married D.C. that continued after they moved into the house and while D.C. was working.
[4] The complainant testified that the incident occurred on a Sunday during the summer when she was 14 years of age. Her foster parents were in Newfoundland and were expected to return that day. The complainant, the accused and his spouse, D.C., went to church that morning. Every Sunday, the accused and D.C. would go to his grandmother’s house for dinner after church which is what the three of them did that Sunday.
[5] After returning home, D.C. took the wash out to the porch to hang on the clothesline. The porch was just off the kitchen. The complainant went upstairs to change her clothes. She testified:
…and [B.H.C.] asked me to throw down his bathing suit.
So, I went in the room and I quickly looked around and everything and I came out of the bedroom and I hollered down that I couldn’t find it. [B.H.C.] came upstairs to get his bathing suit and at this time, I had went in my room and I was in my room getting unchanged from church clothes cause [D.C.] and I were going to clean the house and I just had my bra on and [B.H.C.] came into the bedroom. He come over to the bed, he pushed me down on the bed, he pulled down his pants, I don’t know how far cause I couldn’t see anything and I hollered and he put his hand over my nose and my mouth and he proceeded to put his penis in my vagina. I was struggling. I was trying to bite his hand and I hollered again and then he jumped up. As he was leaving the bedroom, my bed was right in front of my dresser…as he was leaving the bedroom, I picked up a bottle of Timeless perfume and I threw it and I caught him in the eye. He went downstairs.
After I got dressed, I went downstairs. [B.H.C.] told me that if I ever told anybody what happened that he would take me out to the wharf and push me over and it would look like drowning because he knew I couldn’t swim and I was afraid of the water. [D.C.] came into the house after…[B.H.C.] had just left and she asked me why I hollered and I told her that I stubbed my toe.
[6] In direct examination, the complainant stated no one else was at home when they arrived from B.H.C.’s grandmother’s house. When asked where the other members of the household were that day, her response was that she didn’t know where W.D. and N.D. were. The foster parents were on their way back from Newfoundland. M.G. was married at that time and no longer living at home. The complainant could not recall what she was wearing to church that day. She could not recall the accused’s grandmother’s name but could recall where she lived.
[7] Asked if she noticed any injury after hitting B.H.C. with the perfume bottle, the complainant responded that his eye was red. Further:
Q. Okay. Was anyone downstairs when you got there?
A. [D.C.]. No, [D.C.] was just coming in, sorry.
Q. And what was [D.C.] doing?
A. She had been hanging out the clothes on the clothesline.
Q. And did the two of you have any conversation at that time?
A. [D.C.] just asked me why…she said “Why did you holler?” and I told her “because I stubbed my toe”.
Q. And why did you tell her that you had stubbed your toe?
A. Cause I didn’t know what to do. I was scared. I was just a kid.
Q. Do you know where [B.H.C.] was at that time, when you first came downstairs?
A. When I first came downstairs? He was in the kitchen.
Q. And did the two of you have any conversations?
A. He just told me that I wasn’t…if I ever told anybody that he would take me out to the wharf and push me over and it would look like I drowned, cause I couldn’t swim.
Q. Was [D.C.] in the room when he said that to you?
A. No, she was in the porch. She had just come in and then he left.
[8] Under cross-examination and pursuant to an Order resulting from an application under Section 279.92 of the Criminal Code, the Court allowed the accused to adduce evidence relating to a book (manuscript) authored by the complainant for the purposes of impeachment only.
Q. Okay. Now, you testified that when [B.H.C.] first…and I’m going to say [B.H.C.] … it’s [B.H.C.], the accused, entered your bedroom that you were changing. Is that right?
A. Yes.
Q. And you were naked from the waist down.
A. Yes.
Q. So I want to be clear about that. There were no clothes whatsoever on your bottom half? No underwear, no nothing?
A. No.
Q. Okay. And you’re certain of that?
A. Yes.
Q. [S.L.], I understand that you authored a book regarding, in part, this incident with [B.H.C.]. Is that correct?
A. Yes.
Q. And the title of that book is […], is that right?
A. Yes.
Q. And while the book doesn’t name any names, you describe the assault we’re discussing here today with [B.H.C.], in that book?
A. Yes.
…
Q. So, [S.L], I was saying. While the book doesn’t name any names, you’ve documented the incident you’ve described here today with [B.H.C.] in that book, haven’t you?
A. Not to the full degree.
Q. But you’ve discussed the incident involving [B.H.C.]?
A. Briefly.
Q. Okay, it’s a yes or no question, [S.L.]. Do you or do you not discuss the incident with [B.H.C.]?
A. Pardon me?
Q. It’s a yes or no question. Do you or do you not discuss and document the assault of [B.H.C.]?
A. Yes.
Q. Thank you. And I understand you wrote that book about 12 years ago. Is that right?
A. It would be approximately 13 years ago now.
Q. Okay. And no one helped you write that book. You wrote it on your own, correct?
A. Yes.
Q. And that is a factual…it’s your life…it’s a factual book, correct?
A. It’s not fiction.
Q. Is it factual?
A. Yes.
…
Q. Thank you. So, [S.L.], you just stated that you were naked from the waist down when [B.H.C.] entered your room, correct?
A. Yes.
Q. Okay. Now, this is the manuscript we just spoke to and…or the book ‘[…]’ and I’m looking at the first page and it has a six on the bottom of it and I am reading from what appears to be the third paragraph about 10 lines from the bottom of the last paragraph on that page. And it says “[S.L.] was up in her room. Her foster sister hanging out clothes when her brother-in-law approached the room, he pushed her on the bed, put his hand over her mouth and pulled her shorts down”. You wrote that in your manuscript, [S.L.]?
A. I did.
…
[9] The complainant was cross-examined regarding her evidence of B.H.C.’s threat if she disclosed the assault,
Q. Okay. Thank you. Now, you described that following the assault you’ve described here with [B.H.C.], then he made a threat to you that if you told anyone, he would throw you off the wharf.
A. Yes.
Q. In Bayfield?
A. Yes.
Q. And you said that he made that threat to you when you were downstairs after the assault. Is that correct?
A. Yes.
Q. And you’re certain it was downstairs?
A. Yes.
Q. You’re absolutely positive?
A. As my memory serves me correctly, yes.
Q. Now, [S.L.], I’m going to point you to that manuscript again.
A. Yep.
Q. Which you say you authored about 13 years ago and I’m again looking at the front page and again you’re describing the incident with [B.H.C.] and I’m looking about six lines from the bottom of that first page and you wrote: “As he was leaving the room, he turned only to let her know if she ever told anyone, he would take her to the wharf and push her off, knowing she could not swim”.
A. That’s correct. I did write that but that happened downstairs.
Q. Okay. But this version says it happened upstairs.
A. That’s correct.
Q. Okay. And, [S.L.], you provided a statement to Constable Patrick Ramaglia when you first came forward with these allegations, didn’t you?
A. Yes, I did.
Q. And that was a statement that you provided on July 6, 2018, didn’t you?
A. Yes.
Q. And you were truthful when you provided that statement?
A. Yes.
Q. Okay. Now, [S.L.], I’m also going to provide you with a copy with a copy of that statement for your records. I’m assuming my friend has one, if not I have extra copies. So you recall giving this statement to Constable Ramaglia, [S.L.]?
A. Yes.
Q. And you gave accurate information to the Officer when you reported this incident?
A. As best to my knowledge, yes.
Q. Okay. Is it best to your knowledge or truthful? [S.L.], to the best of your knowledge or truthful?
A. Truthful to what I could remember, yes.
Q. Okay. So, [S.L.], I’m going to ask you to look at page 18 of that statement.
A. Sure.
Q. And in that statement, you’re discussing the allegation against [B.H.C.] because this is when you reported it to the Police?
A. Yes.
Q. And at line 5 you say: “Before he left the room, like I said”. Constable Ramaglia said “Right”. “He knew I couldn’t swim.” “Right.” “I had almost drowned when I was with my biological parents.” “Right.” “He threatened to take me out to the wharf and push me. I would have drowned because I couldn’t swim.” So, you recall…that’s your statement?
A. Yes it is.
Q. And your statement is before he left the room, he threatened you?
A. Yes but it actually happened downstairs.
Q. So the information you provided to the Police Officer is not accurate?
A. It’s not to say that it’s not accurate. The statement…the quote was very accurate but did it actually happen in the bedroom upstairs, no it did not, it happened downstairs in the kitchen.
Q. Okay but on two separate accounts, you have described it, [S.L.], as happening upstairs in the bedroom, haven’t you?
A. That’s correct. I did but it didn’t happen up there.
Q. Okay but you’ve said that in the past?
A. Yes I did.
Q. Okay so immediately after the assault, you say that [B.H.C.] went downstairs…
A. That’s correct.
Q. Threatened you and left?
A. Pardon me?
Q. After the assault happened, you say [B.H.C.] went downstairs, he threatened you and he left.
A. He did.
Q. Okay. And when he left the room, that’s when [D.C.] came in, is that correct?
A. When he left the room?
Q. So [B.H.C.] threatened you?
A. Yes.
Q. He left the home?
A. [D.C.] was already coming in the porch when [B.H.C.] was saying what he had to say in the kitchen and then he left.
Q. Okay. So, did [D.C.] have any interaction with [B.H.C.] before he left?
A. No.
Q. Did she see him before she left?
A. Did I see him?
Q. Did [D.C.] see him?
A. Yes, she walked into the kitchen. She had been in the porch.
Q. Okay, and did she see his injured eye?
A. Pardon?
Q. She didn’t see his injured eye?
A. Not to my knowledge.
Q. Okay. So you’re certain that [B.H.C.] was in the house when [D.C.] came in? When she saw him?
A. Yes.
Q. Okay. Now, I want to take you to a…you recall giving evidence at a Preliminary Inquiry, [S.L.]?
A. Yes.
Q. And you gave evidence on October 31, 2019 at that Preliminary Inquiry?
A. Yes.
Q. And you gave that evidence under oath, like you’ve given an oath here today, correct?
A. Yes.
Q. Okay, I’m going to provide you with a copy of that Preliminary Inquiry transcript. Just one moment, My Lord. Okay, I’m looking at page 17 and 18 of that Preliminary Inquiry transcript, [S.L.], and I want to be clear, [B.H.C.] didn’t leave until [D.C.] came…after [D.C.] came in, is that right?
A. Correct.
Q. Okay, so starting at line…or page, sorry, 17, I’m looking at Line 17, Page 17:
Q. How long was the incident from start until finish?
A. Not 10 minutes.
Q. While this was going on, did [B.H.C.] say anything to you?
A. No.
Q. And after it concluded, did he say anything to you?
A. No, the only thing he said to me later, um…if I was to tell anybody, that he would push me over the edge of the wharf in Bayfield because he knew I couldn’t swim and it would look like a drowning.
Q. About how long after did he say that?
A. When we went…he went downstairs, I went downstairs, he said that, he left. [D.C.] came in from hanging out clothes.
So, when you say “he said that, he left. [D.C.] came in…”, [D.C.] actually didn’t come in after he said that or after he left, it was at the same time?
A. [D.C.] came into the kitchen. There was…okay, so in this statement here, we didn’t go into sayin’ well [D.C.] come into the kitchen. [D.C.] had already came into the porch with the clothes basket then came into the kitchen.
Q. But you say, “he left, [D.C.] came in”.
A. Yeah.
Q. So, did [D.C.] come in before or after he left?
A. [D.C.] came into the porch, then [D.C.] came into the kitchen, then [B.H.C.] left.
[10] On cross-examination, the complainant confirmed there was no one at home when they arrived from the accused’s grandmother’s house. She acknowledged that the accused and D.C. had two children at the time, ages two and a half years and six months. She stated that the children were not home when they arrived and she could not remember where they were.
[11] The complainant was questioned on her memory of the event relating to the accused:
Q. Okay, now, [S.L.], you said that…or I understand that there was a period of time where you blocked the memory relating to [B.H.C.] until you were 32 years old. Is that correct?
A. The word blocked is very vague there. I had been going through a lot in my life. My daughter had passed away and I was seeking counseling for that.
Q. Okay but you used the word blocked, didn’t you?
A. Yes I did.
Q. Okay and there was a period of time where things were blocked from your memory and they started coming back to you, didn’t they?
A. Yes.
Q. Okay and coming back to you would imply that they left you at one point?
A. No, they didn’t really leave me at that point, I was dealing with my daughter’s death at that point.
Q. So if they didn’t need to leave you…if they didn’t leave you, why would the memories have to come back or be blocked?
A. You have to re-phrase your question.
Q. Well, you stated that things started coming back to you and that you blocked the memory so if you’ve done that, at some point, it’s not there. Is that correct?
A. The point where it wasn’t there is when I was dealing with my daughter’s death and then as I was seeking counselling for my daughter’s death, then I started having vicious nightmares and dreams and stuff about what happened and I knew I had to talk to somebody about it.
Q. Okay, so visions, nightmares and dreams. Is that correct?
A. Correct.
Q. Okay, so [S.L.], you stated that it left you because you had this traumatic event and then it came back to you through visions, nightmares and dreams…
A. But it never really left me. It was always with me but when you lose a child, you have to prioritize your counselling or whatever you’re doing in your life, like…like I explained, I was in counselling for the death of my child.
Q. Okay but when you describe the memories being blocked, it wasn’t there, is that correct?
A. It wasn’t really blocked, like…like, when you say blocked that means you just poof put it out of your memory. No, I had other things I had to deal with and when you’re dealing with counselling like when I was talking to my counsellor about, you know, my daughter and stuff like that, she just didn’t focus on the fact of my daughter, we talked about things that happened in my life and etcetera, etcetera.
Q. Okay and the visions and the nightmares and the dreams, that’s when things started coming back, is that right?
A. That’s when it started to get worse and I knew I had to talk to somebody more about it…
Q. Okay.
A. It’s not like I hadn’t discussed it before but I just knew I had to.
[12] On cross-examination, the complainant acknowledged and agreed that she saw more than six different counsellors over a 10-12 year period. She could not recall the full names of any of the counsellors. She referred to one as John or Jerry, another as Petra. She acknowledged discussing her “nightmares and her dreams” regarding the accused with the counsellor named John or Jerry. The complainant denied having any issues with her memory.
[13] The complainant acknowledged she commenced a civil lawsuit against the Province seeking damages that involves in part allegations against B.H.C..
[14] On cross-examination, the complainant acknowledged and agreed with the following: The complainant’s evidence is that approximately six months following the assault, the complainant disclosed the incident to her foster parents in their home. It was approximately 10 p.m. in the evening. The accused was upstairs sleeping. Her father became irate and went upstairs to fetch the accused. While all were present in the kitchen, the accused denied the allegation. The complainant then picked up a knife and told the accused to tell the truth. At that point, the accused acknowledged the assault. The accused was kicked out of the house that night. He was never allowed back in the house.
[15] The complainant further acknowledged and agreed that after the accused left the house, her foster father called for his daughter, M.G., who lived across the street. She was told that the accused raped the complainant and was kicked out of the house. That M.G. told her to go stay at her house for the night.
[16] M.G. testified on behalf of the defence. M.G. and her husband are currently foster parents to three teenaged children. They also have children of their own and grandchildren. M.G. is the natural daughter of the complainant’s foster parents. She is the sister to D.C.
[17] M.G. testified that her sister, D.C., and B.H.C. got married and moved into the family home in early 1974. Their son was born April 15, 1974. A daughter was born on January 2, 1976. M.G. and her husband lived across the road from her parents’ home. She was very involved in her parents’ life on a regular basis including helping with shopping and paying their bills.
[18] M.G. testified that the complainant left her parents’ home when she was 18 years of age. Prior to that time she did not mention any allegations against B.H.C..
[19] M.G. was questioned regarding her involvement on the evening that the complainant testified that B.H.C. was confronted and kicked out of the house. M.G. testified that she was never called over to her parents’ house that night and told that B.H.C. had raped the complainant and that she never told the complainant to stay at her home that night. Her parents were not mad at B.H.C. for any assault and at no time was B.H.C. ever kicked out of the house. Her parents always had a good relationship with B.H.C..
[20] M.G. described the complainant as her little sister when they lived together at her parents’ home. They had a good relationship. They slept in the same bedroom in the same bed. M.G.’s last contact with B.H.C. was approximately 4 years ago.
[21] M.G.’s testimony under cross-examination follows:
Q. It is your evidence that [S.L.] never made any sort of disclosure or conversation respecting being sexually assaulted?
A. Absolutely not and that’s what really puzzles me because [S.L.] and I were very close. I was very protective of [S.L.]…yeah, never.
Q. Did [S.L.] ever make any disclosures to you about being sexually assaulted?
A. Yes.
Q. When did that happen?
A. Could have been 8 years ago, it might be as much as 12 years ago but I…it’s probably 10…8 or 10 years ago.
Q. You had indicated that you don’t remember any time that [B.H.C.] was kicked out of your parent’s home.
A. Absolutely not. [B.H.C.] never was kicked out of my mom and dad’s house. Never.
Q. Was there any period prior to, well I don’t know what happened first, whether he and [D.C.] moved out or if they divorced first.
A. No, no, no, no. [D.C.] and [B.H.C.] moved from mom and dad’s down to our property, down at the end of the road. All on good terms, we all helped with that move.
Q. Was there any period while [D.C.] and [B.H.C.] were living with your parents, to your knowledge, that [B.H.C.] might have left of his own accord?
A. No.
Q. Do you still have contact with…I know you say you didn’t have contact with [B.H.C.], do you still have contact with [S.L.] today…[S.L.]?
A. No. I’ve blocked her but she did call me here a couple of months ago, maybe three months.
Q. Do you mean like you blocked her number?
A. At one point in time because she kept calling me, yeah.
Q. Do you have any idea why she kept calling you?
A. Yeah, she was drinking and she was always bringing up this stuff and I’d tell her when you want to talk to me, you talk to me sober.
Q. Bringing up this stuff, you mean…
A. Bringing up these sexual assault, yeah and I questioned her why didn’t you tell me, we talked about everything all the time, how come you didn’t tell me earlier. Now, she didn’t tell me about this rumpus that was supposed to have happened and [B.H.C.] being kicked out of the home.
Q. Are you aware that [S.L.] is involved in an Action against the Province?
A. No.
[22] Crown Counsel then raised the issue of M.G.’s knowledge of other allegations made by the complainant:
MR. GAVEL: Are you aware of [S.L.] making other allegations respecting persons other than [B.H.C.]?
A. Yes.
Q. Who would that be?
A. [W.D.], my brother. At one point in time, she said my husband but she retaliated on that a couple of days later, called me back, she was actually very drunk on the phone, slurring and mumbling and going on when she did that that night so within a week I got a call from her apologizing that she said [J.]. She was sorry for it but [W.D.]… at one time to, she…at that night she said and your favourite uncle which would have been Uncle [C.] but that…but she was drunk and she…[S.L.] didn’t say very nice things when she was drinking.
Q. Do you still have contact with your brother [W.D.]?
A. Yes.
Q. Are you aware that he’s before the Court now facing a similar charge?
A. Yes.
Q. How do you feel about that?
A. The same way…
MS. BURKE: Objection, Your Honour. I don’t know how it’s relevant what she feels?
THE COURT: Yeah, no, I think he’s trying to determine whether or not the witness is bias and I’ll allow him to ask the question.
MR. GAVEL: So, how do you feel about the fact that [S.L.] is accusing your brother of assaulting her?
A. How do I answer that? I’m all about the truth. I have no feelings whatsoever for [B.H.C.], not good feelings and yet I’m here to testify that that didn’t happen.
Q. When you say that didn’t happen, just what do you mean?
A. Sexual assault or the…no,no, not about the sexual assault, sorry, about being thrown out of our home or my mom and dad’s home. That didn’t happen and it upsets me to know that if she wanted to tell that story she should not have implemented me because she knows I have a good memory and I’m in a good state of mind and that didn’t happen, sir. So the reason I am here today is to tell the truth and I take swearing on that holy bible very strongly.
[23] B.H.C. testified on his own behalf. He stated that he was married to D.C. for a period of eight years. They had two children together, born April 15, 1974 and January 2, 1976. B.H.C. has been in a common law relationship with his current partner for the past 38 years.
[24] B.H.C. testified that during the period 1976-1977 he, his spouse, D.C., and their two children resided in the same home as the complainant. That his children never left the Province.
[25] B.H.C. made an outright denial of any of the events described by the complainant relating to the assault. Specifically, he did not rape or threaten the complainant and was never struck in the eye with a perfume bottle. B.H.C. denied there was any confrontation with the family regarding the matter, that he was never kicked out of the family home or ever had a falling out with the family. He always had a very good relationship with his in-laws as well as D.C. following their divorce.
[26] Under cross-examination, B.H.C. testified that he and D.C. were married around 1973 and divorced in 1982 or 1983. He and D.C. left her parents’ home after acquiring land “down the road” where they placed a mini home. His oldest child would have been approximately three and half years of age at the time.
[27] B.H.C. denied the allegations and stated that there was no issue of consent. When asked, B.H.C. stated he heard about the allegation one year ago, last summer, when he received a call from the RCMP and that D.C. never mentioned it to him.
[28] B.H.C. stated he worked for Irving in Saint John, New Brunswick for a year in 1974-1975 and that he would have come home most weekends.
[29] B.H.C. was cross-examined regarding the complainant’s evidence that she struck him in the eye with a bottle of perfume.
MR. GAVEL: Respecting the…if you will recall, there was evidence from [S.L.] that there was a bottle of perfume that was thrown at you and hit you by the eye. You say that never happened?
A. That never happened.
Q. Do you have any recollection of telling people that you had gotten a piece of steel in your eye around that time…around Summer of 1976?
A. No, no, no.
Q. That’s the say…are you saying no you never told people that or you don’t recall telling people that?
A. No, it wasn’t ’76. Earlier, I had got a piece of steel in my eye.
Q. Do you recall when that might have been?
A. It was after I got out of high school. It was…I remember it was in the Fall of the year because I was working…there was a work project through the Department of Fisheries cleaning debris out of the river. That’s what I was doing when it happened.
Q. What year would you have finished high school?
A. Probably…probably 40-some years ago it would have to be.
Q. Do you know how old you were when you completed high school?
A. I’d say I was probably 19 or 20.
Q. So if you are 19 or 20 then and you are 69 today…so roughly 49-50 years ago?
A. Yes, sir.
Law and Analysis
[30] In order to obtain a conviction under former Sections 143 and 149 of the Criminal Code, the Crown must prove beyond a reasonable doubt all of the elements of the alleged offences. The Crown must prove that the accused, knowing that the complainant (who was not his wife) did not consent, committed the act of sexual intercourse/indecent assault.
[31] As stated in R. v. D.L.W., 2016 SCC 22, “penetration, even to the slightest degree” is an essential element of sexual intercourse. Indecent assault under former Section 149, has been judicially interpreted as an assault in circumstances of indecency, R. v. Chase, [1987] 2 SCR 293.
[32] Three witnesses testified at trial. Contradictory evidence with respect to the circumstances surrounding the alleged assault bring credibility to the forefront. Where credibility is the main issue, the rule regarding reasonable doubt applies to that issue. This rule was first enunciated by the Supreme Court in R. v. W.(D.), [1991] 1 SCR 742.
Where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that: (1) if they believe the evidence of the accused, they must acquit; (2) if they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit; (3) even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept. …
[33] Further, where the trial judge does not know who to believe he must acquit, R. v. J.H.S., 2008 SCC 30.
[34] In R. v. Hughes, 2020 NSSC 143, the Court discussed the issue of credibility.
[55] In Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, [1951] B.C.J. No. 152, the majority of the British Columbia Court of Appeal discussed the credibility of witnesses. O'Halloran J.A. said:
11 The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions...
[56] In Baker v. Aboud, 2017 NSSC 42, Forgeron J. gave guidance on the principles governing assessment of credibility:
13 Guidelines applicable to credibility assessment were canvassed by this court in paras. 18 to 21 of Baker-Warren v. Denault, 2009 NSSC 59, as approved in Hurst v. Gill, 2011 NSCA 100, which guidelines include the following:
* Credibility assessment is not a science. It is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:" R. c. Gagnon, 2006 SCC 17 (S.C.C.), para.20. ... "[A]ssessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:" R. v. M. (R.E.), 2008 SCC 51 (S.C.C.), para. 49.
* There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety: Novak Estate, Re, 2008 NSSC 283 (N.S.S.C.). On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence, Novak Estate, Re, supra.
* Demeanor is not a good indicator of credibility: R. v. Norman(1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (Ont. C.A.) at para. 55.
* Questions which should be addressed when assessing credibility include:
a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the documentary evidence, and the testimony of other witnesses: Novak Estate, Re, supra;
b)Did the witness have an interest in the outcome or were they personally connected to either party;
c)Did the witness have a motive to deceive;
d)Did the witness have the ability to observe the factual matters about which they testified;
e)Did the witness have a sufficient power of recollection to provide the court with an accurate account;
f)Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.);
g)Was there an internal consistency and logical flow to the evidence;
h)Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant or biased; and
i)Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?
[35] This incident was alleged to have happened 44 years ago. Non-material inconsistencies are not unusual given the passage of time. However, material inconsistencies, in particular inconsistencies that include prior inconsistent statements, inconsistencies between the witnesses own testimony as well as testimony of other witnesses, become more significant.
[36] In R. v. B.(R.W.), [1993] B.C.J. No. 758, the BC Court of Appeal said:
29 In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between the complainant’s evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’ evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.
[37] There were inconsistencies in the complainant’s direct evidence as well as inconsistencies with prior statements made in a Police report and her book (manuscript). There were inconsistencies with her evidence at trial and her evidence given at preliminary hearing.
[38] Early in her direct evidence, the complainant testified that she was only wearing her bra when B.H.C. came into her bedroom. Further that D.C. came into the house after B.H.C. left. During questioning later in her direct testimony, she testified that B.H.C. left after D.C. came into the kitchen.
[39] In cross-examination after confirming the certainty of her state of dress given in her direct, she was referred to statements she made in her book (manuscript) that she wrote 13 years earlier. After confirming the book was factual, she confirmed her writing stated that B.H.C. came into her room, put his hand over her mouth and pulled her shorts down. The complainant did not offer any explanation for this inconsistency.
[40] After confirming she was certain that B.H.C. made the threat to her downstairs, the complainant was referred to her writings in the book (manuscript) where she wrote that B.H.C. made the threat upstairs in her bedroom. The complainant acknowledged she wrote the statement but maintained it happened downstairs.
[41] The complainant stated she was truthful when she gave the Police statement in July 2018. She acknowledged in her statement to Police that the threat happened upstairs but maintained at trial that it happened downstairs.
[42] On cross-examination, the complainant stated D.C. was coming in the porch when B.H.C. made the threat. That she was certain that D.C. saw B.H.C. in the kitchen before he left but was unsure if she saw the injury to his eye. The complainant acknowledged her testimony at the preliminary hearing in October 2019 that D.C. came in from hanging the clothes after B.H.C. left. The complainant maintained her evidence at trial that B.H.C. left after D.C. entered the kitchen.
[43] Regarding the complainant’s memory, she acknowledged that she blocked the events regarding B.H.C. until she was 32 years of age, some 18 years after the alleged incident. That the memory came back to her during counselling regarding the death of her child. The complainant acknowledged that she had nightmares and dreams regarding B.H.C. that she discussed with her counsellor. Although recall or recovered memory is plausible, it can bring into question the accuracy and therefore the reliability of her memory. The complainant saw more than six counsellors over a 10-12 year period, but she was unable to recall their names. The complainant was unable to recall where B.H.C. and D.C.’s infant children were on that Sunday afternoon when the incident was alleged to have occurred at their home.
[44] The place and conditions surrounding the alleged offence are relevant in assessing the probability of the incident occurring as described by the complainant. It was alleged that a violent assault occurred on a Sunday afternoon (in the absence of the accused’s infant children) that persisted despite “hollering” by the complainant that could be heard by the accused’s spouse who subsequently encountered both of them downstairs.
[45] The cumulative effect of the complainant’s evidence raises concerns about credibility and reliability of her evidence.
[46] The defence presented contradictory evidence. It is difficult to assess the credibility of B.H.C. in light of his blanket denial. He did not have a story to tell. B.H.C. did acknowledge his faulty memory regarding dates that many years ago. He appeared to take his time to answer questions as best he could given the time lapse.
[47] M.G. appeared to present her direct evidence in a straight-forward manner. She did not paint a picture of having any problems with the complainant, testifying about their prior good relationship. Any negative evidence about the complainant’s subsequent behaviour was brought out by the Crown in cross-examination. She readily acknowledged being upset with the complainant’s allegation against her brother. M.G. also expressed that she did not have good feelings towards B.H.C.
[48] The cumulative effect of the defence evidence points to doubt.
[49] The evidence must be analyzed in the context of the burden of proof on the Crown to prove the charges beyond a reasonable doubt. As stated in the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, reasonable doubt is not probability of guilt nor is it absolute certainty, but is it closer to absolute certainty.
Having considered the whole of the evidence, I am not satisfied that the Crown has proven the charges beyond a reasonable doubt.
[50] As a result, I find B.H.C. not guilty of the charges before the Court.
Scaravelli, J.