SUPREME COURT OF Nova Scotia
Citation: R. v. C.E.G., 2021 NSSC 305
Date: 20211025
Docket: CRAT No. 501118
Registry: Antigonish
Between:
Her Majesty the Queen
v.
C.E.G.
DECISION ON TRIAL
Restriction on Publication: Sections 486.4 and 486.5 of the Criminal Code
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Judge: |
The Honourable Justice Scott C. Norton |
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Heard: |
October 5, 2021 in Antigonish, Nova Scotia |
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Decision: |
October 25, 2021 |
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Counsel: |
Courtney MacNeil, for the Crown T. J. McKeough, for C.E.G. |
By the Court:
[1] C.E.G. is charged that he, on or about the 18th day of May, 2020, at or near New Harbour, Nova Scotia, did commit a sexual assault on A.H., contrary to Section 271 of the Criminal Code.
[2] During the course of the trial Mr. G. conceded the issue of identification and that statements (oral and recorded) made by Mr. G. to the investigating officer were voluntary.
[3] The Crown’s evidence consisted of testimony from the complainant A.H., her friend, E.P., and the investigating officer, Cst. Nathan Sparks of the RCMP, […] Detachment.
[4] Mr. G. and his wife, L.G., testified in his defence.
[5] The background facts that are not in dispute are as follows. Following a disagreement with her mother in February or March 2020, A.H., then 17 years old, went to live with Mr. G. and his wife, L., at their home at […] in […], […]County (“Residence”). L. is A.H.’s paternal grandmother. Mr. G. is A.H.’s step-grandfather. I will refer to them collectively as A.H.’s grandparents. L.’s mother, M.C., also lived at the Residence.
[6] On May 18, 2020, after supper, A.H. was watching television with her grandparents and great grandmother. A.H. was lying on a couch facing the television with her elbow and head at the left end of the couch and her legs resting across the couch. Mr. G. was sitting at the other (right) end of the couch. L. and her mother were seated in side by side single chairs at a ninety degree angle and to the left of the front of the couch. At one point in time, L. left the room to use the bathroom. As she returned, she met her mother who was headed to bed. L. decided she would also go to bed and changed into her pyjamas. She tried to lie down but experienced pain in her legs caused by arthritis and returned to the living room. She was gone from the living room approximately 15 minutes. After a further period of time watching television, A.H. got up and took L.’s laptop into her room. She texted her friend E.P. stating she needed help, she was scared and asked E.P. if she or one of E.P.’s parents could come and get her.
[7] L. and Mr. G. went to bed about 15 minutes after A.H. Approximately 40 minutes later, A.H. awakened L. and Mr. G. and asked to speak to L. in A.H.’s room. There, she told L. that Mr. G. had assaulted her. L. then spoke to Mr. G. as he was getting dressed and he apologized to A.H. and left the Residence.
[8] A short while later A.H. contacted the RCMP to report the incident. She was told that the RCMP were already on their way to the Residence as a result of them being contacted by E.P.’s mother.
[9] Cst. Sparks was driving toward the Residence when he saw a vehicle. As this was uncommon in that area at that time of night, he did a licence plate check and learned that the vehicle was registered to Mr. G., the alleged perpetrator in the incident that he was investigating. He made a roadside stop of Mr. G.’s vehicle and had a discussion with Mr. G.. Mr. G. then drove back to the Residence followed by Cst. Sparks. After talking to A.H. and L., Cst. Sparks arrested Mr. G. and took him to the […] RCMP Detachment. There, Cst. Sparks obtained an audio-recorded statement from Mr. G.. Mr. G. was charged with sexual assault and released on condition that he not return to the Residence while the complainant was present. Cst. Sparks then drove Mr. G. back to the Residence where L. provided him with some money for gas. Mr. G. then left in his car and drove around for the rest of the night. While at the Residence, Cst. Sparks took audio-recorded statements from A.H. and L.. The next morning A.H. left the Residence to live with her maternal grandmother.
[10] The charge relates to the events that happened prior to and during the time that L. left the living room and returned. The complainant and Mr. G., supported in part by his wife L., provided distinctly different narratives of those events. Findings of credibility and reliability are fundamental to deciding whether the Crown has proved the charge beyond a reasonable doubt.
Governing Principles
The Presumption of Innocence and Reasonable Doubt
[11] It is not Mr. G.’s responsibility to demonstrate, establish, or prove his innocence or to explain away the allegations made against him. He is presumed to be innocent until proven guilty beyond a reasonable doubt. The Crown bears this onus of proof beyond a reasonable doubt throughout the trial and it never shifts. This burden requires the Crown to prove each element of each offence beyond a reasonable doubt (R. v. Lifchus, [1997] 3 SCR 320).
[12] In R. v. Baxter, 2019 NSSC 274, Justice Hunt provided a helpful summary of the instructions from the Supreme Court of Canada and the Nova Scotia Court of Appeal on what is meant by proof beyond a reasonable doubt (para. 12):
• A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
• Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
• On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
• In short, if based on the evidence before the Court, you are sure that the accused committed the offence you should convict because this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
• It has to be remembered that the burden of proof never shifts to the defendant. This is irrespective of whether the defendant himself gives evidence or [sic] not.
• In this case the Defendant did testify. This raises particular issues of analysis which the court will address. But whether the defendant testifies or not, at no time does the burden of proof shift to the defendant and the resolution of the case does not turn on the court picking which version of the evidence it prefers or finds more believable.
Credibility and Reliability
[13] In Faryna v. Chorny, [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...
[14] 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), 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, [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?
[15] Although demeanor should be given little weight in determining the overall credibility and reliability of witnesses, the court in R. v. Lifchus, [1997] 3 SCR 320 articulated some of the issues facing a trier of fact when assessing a witness’ credibility:
29 Nonetheless there is still another problem with this definition. It is that certain doubts, although reasonable, are simply incapable of articulation. For instance, there may be something about a person’s demeanor in the witness box which will lead a juror to conclude that the witness is not credible. It may be that the juror is unable to point to the precise aspect of the witness’s demeanor which was found to be suspicious, and as a result cannot articulate either to himself or others exactly why the witness should not be believed. A juror should not be made to feel that the overall, perhaps intangible, effect of a witness’s demeanor cannot be taken into consideration in the assessment of credibility.
[16] Care must be taken in differentiating credibility from reliability. In R. v. Morrissey (1995), 97 C.C.C. (3d) 193, [1995] O.J. No. 639 (Ont. C.A.), Doherty J.A. said, for the court:
33. Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross- examination.
[17] As Justice Arnold noted in R v Hughes, 2020 NSSC 143, at para 59, Justice Doherty pointed out that the passage of time can affect the reliability of a witness’ testimony. Justice Arnold went on to say, at para 60:
[60] In R. v. H.C., 2009 ONCA 56, Watt J.A. discussed the difference between credibility and reliability. He stated, for the court:
[41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence...
[42] This case required the trial judge to assess the credibility of two mature adults, T.F. and the appellant, as well as of a child of ten, K.F. Credibility requires a careful assessment, against a standard of proof that is common to young and old alike. But the standard of the “reasonable adult” is not necessarily apt for assessing the credibility of young children. Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult... [Citations omitted.]
[18] The difference between credibility and reliability was helpfully explained in R. v. M.C.J., 2015 ONCJ 171 as follows:
[23] In that regard I note the differences between credibility and reliability. Credibility relates to a witnesses’ sincerity, whether she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of her testimony. In determining this, I must consider her ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.
[19] As Mr. G. has led evidence in his defence, I must apply the principles and analysis set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742 (“W.(D.)”). The three steps of W.(D.) are as follows:
1. If the Court believes the evidence of the accused, the Court must acquit;
2. If the Court does not believe the testimony of the accused but is left in reasonable doubt, the Court must acquit;
3. Even if the Court is not left in doubt by the evidence of the accused, the Court must ask whether, on the basis of the evidence that it does accept, the Court is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[20] The analysis is to be undertaken on all of the evidence: R. v REM, 2008 SCC 51. The Nova Scotia Court of Appeal in R. v. D.W.S., 2007 NSCA 16, Bateman J.A., writing for the Court, explained the analysis as follows:
[13] In W.(D.), supra, at p.758 Cory, J. suggests the following jury instruction on the question of credibility:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[14] In R. v. P.S.B. (2004), 222 N.S.R. (2d) 26; N.S.J. No. 49 (Q.L.), Cromwell, J.A. writing for this Court , explained the significance of the W.(D.) instruction in this way:
[56] W.(D.) is concerned with how a trier of fact should apply the burden of proof in a criminal case where the accused testifies. In brief, the trier must remember that the issue is not whether he or she believes the accused, but whether the evidence as a whole convinces the trier of fact of the accused's guilt beyond a reasonable doubt. If the trier of fact believes the exculpatory evidence of the accused, an acquittal must follow. However, even if the trier does not believe that evidence, the trier must ask him or herself if it nonetheless gives rise to a reasonable doubt. Finally, if the trier does not believe the accused and is not left in doubt on the basis of that evidence, the trier must still address and resolve the most critical, in fact, the only question in every criminal case: Does the evidence as a whole convince the trier of guilt beyond a reasonable doubt?
[15] W.(D.) prohibits a trier of fact from treating the standard of proof as a simple credibility contest - in other words, discounting the evidence of the accused merely because it is inconsistent with that of the complainant, which evidence he prefers. This does not mean, however, that a witness’s credibility is assessed in isolation from the rest of the evidence. In conducting that assessment it is unavoidable that the evidence of witnesses be compared. (R. v. Hull [2006] O.J. No. 3177 (Q.L.) (C.A.)). In that process, the evidence of the accused may be disbelieved. That evidence may nevertheless create a reasonable doubt about the persuasiveness of the Crown’s evidence, in this case, that of the complainant. In other words, the reasoning process is not complete with the rejection of the evidence of the accused.
[16] Only where the absence of reasons for disbelieving the accused’s evidence leads to an inference that the judge has misapplied the burden of proof is it reversible error. As Fichaud, J.A. wrote for this Court in R. v. Lake (2005), 203 C.C.C. (3d) 316:
[21] . . . The trial judge may discount the accused's testimony just because she has believed the Crown witnesses. The defence is neutered in the starting gate regardless of how the accused presents or testifies. The accused has not really been disbelieved. He has been marginalized. So it is impermissible to reject the accused's testimony solely as a consequence of believing the Crown witnesses. The trier of fact should address both whether the Crown witnesses are believed and whether the accused is disbelieved. This is the rationale for W. (D.)'s first question.
[22] The analysis of both the accused's testimony and the Crown's evidence is done with full knowledge of all the evidence that has been adduced at the trial. The first W. (D.) question does not vacuum seal the accused's testimony for analysis. In W. (D.), p. 757, Justice Cory cited R. v. Morin, [1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193, which, at pp. 354‑55, 357‑58, rejected the piecemeal analysis of individual segments of evidence for reasonable doubt. The point of W. (D.)'s first question is not to isolate the accused's testimony for assessment, but to ensure that the trier of fact actually assesses the accused's credibility, instead of marginalizing it as a lockstep effect of believing Crown witnesses.
[17] The reasons here demonstrate that the judge conducted the proper analysis. Opening with a detailed reference to W.(D.), supra, he further illustrated his understanding of the principles by quoting the above passage from P.S.B., supra (see para.14, above). He followed with a thorough summary of the testimony of each witness including express references to portions of K.’s evidence from the videotaped interview. He considered that evidence, referring again to W.(D.). He summarized the testimony of D.W.S. denying the assaults. The judge disbelieved that evidence and found that it did not create a reasonable doubt. He then carefully scrutinized the remaining evidence, primarily that of K. and was satisfied that the Crown had met the burden of proof. The single issue in this case, as in many sexual assaults, was credibility. There were no difficult points of law or unexplained critical factual findings on confused or contradictory evidence (see R. v. C.S.B. (2005), 237 N.S.R. (2d) 334; N.S.J. No. 402 (Q.L.)(C.A.)).
[21] It is not for a trier of fact to simply choose which version of the events to believe, if any. The trier of fact must consider all of the evidence. This Court must decide whether it is satisfied beyond a reasonable doubt that Mr. G. committed the offence alleged. Probability is not sufficient. The standard in a criminal matter is that the Crown must prove the guilt of an accused person, in this case Mr. G., beyond a reasonable doubt - which lies somewhere between probability and absolute certainty, but closer to absolute certainty.
Elements of the Offences
[22] The relevant Criminal Code provisions state:
Assault
266 Every one who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
Sexual assault
271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
[23] To find Mr. G. guilty of sexual assault, the Crown must prove beyond a reasonable doubt each of these essential elements:
(a) That Mr. G. intentionally applied force to A.H.;
(b) That A.H. did not consent to the force that Mr. G. applied;
(c) That Mr. G. knew that A.H. did not consent to the force that Mr. G. applied;
(d) That the force that Mr. G. applied took place in circumstances of a sexual nature.
[24] Intentionally means on purpose, in other words, not by accident. Mr. G. says that his actions were accidental. I must first examine all of the evidence to determine whether the Crown has proved beyond a reasonable doubt that Mr. G. applied force intentionally.
Mr. G.
[25] I begin with the evidence of Mr. G. He says that for the entire time that they were watching television, he was seated on the right side of the couch with his feet up on the coffee table in front of the couch and A.H. was lying across the couch with her lower legs over his legs. L. and her mother went to bed. A short time later, he got up to use the bathroom. As he did so when he put his hands down on the couch to push himself up, his left hand slipped and touched A.H.’s groin area on top of her clothing. He said he was sorry. He went to the bathroom and when he returned he again sat on the right side of the couch and A.H. again put her lower legs on top of his.
[26] After he went to bed A.H. came into his room and asked to speak to her grandmother. L. went to A.H.’s room and when she returned told him A.H. was accusing him of sexually assaulting her. He was in the process of getting dressed. He left his room and stopped by the door to A.H.’s room and said he was sorry and then left the Residence. He drove around in the car until he encountered Cst. Sparks. He then drove back to the Residence and then went with Cst. Sparks to the police station and gave a cautioned statement. He was then taken home to get his car and drove around the rest of the night until he drove by the Residence at about 11:00 am the following morning and his wife flagged him down and told him that A.H. had left.
[27] In cross-examination he stated that when his wife told him A.H. was accusing him of sexually assaulting her, he was surprised because his hand slipped. He said that when he got in the police car he told Cst. Sparks it was accidental.
[28] The passages of the recorded statement that were read to Mr. G. in cross-examination are inconsistent with him having told Cst. Sparks that it was accidental. He does not use the word accident at all in the recorded statement. There is not one mention of his hand slipping. He told Cst. Sparks that he put his “hand over her side and my hand went down and touched her between the legs”. He made no mention of this occurring as he was attempting to get up. He told Cst. Sparks that it was a mistake, and acknowledged “yeah” to the questions “you knew what you did?”; “you know it wasn’t right?”; and answered “no” to the question “it shouldn’t have happened?”.
[29] I do not accept Mr. G.’s evidence that he told Cst. Sparks it was accidental. He also told Cst. Sparks in his recorded statement that “I knew I did something wrong”.
A.H.
[30] I now turn to the evidence of the complainant. She was adamant that L. and her great grandmother went to bed at 10:45 because she saw the time on the television. Before they left the room, A.H. was sitting at the left end of the couch with her legs extended toward Mr. G. who was on the right end of the couch. While they were watching television he began to rub her lower legs and then moved his hand up to her thighs and between her thighs and toward her vaginal area. She says there was no light on in the living room but light was coming in through the door to the adjacent dining room to the left of the couch. She did not know how to respond. It was not something she expected or was used to. She could not say anything.
[31] A.H. says that at 10:45 p.m., everyone except A.H. got up and left the room. Only Mr. G. returned and again sat at the right end of the couch. He went back to rubbing her legs between her thighs on top of her pants. She responded by crunching herself up into her own space. He then started rubbing her vagina area on top of her pants. He was using his left hand. He started softly but then got rougher. He then leaned over and placed his left hand behind her on the couch and, in doing so, knocked the ash tray off the right arm of the couch. He was supporting his weight with his left hand. He moved her right leg and used his right hand to rub her vagina area over her pants. She was wearing black leggings and he began playing with the elastic band. Then he said “let me get in there A.” and put his right hand down her pants and put his fingers in her vagina.
[32] She said she was terrified and betrayed. She could not say anything to him.
[33] She says that these events went on for 10-15 minutes. It came to an end when L. came back into the room. He sat up quickly when he heard L. approaching. She was huddled up in the corner of the couch. She could not look at her grandmother. A short while later she got up and kissed L. on the head, picked up L.’s computer and went to her bedroom and cried. She then picked up a bag and started packing. This was between 11:30 and midnight. She is not positive about the time.
[34] She then decided to message her friend E.P. She was using L.’s computer which she usually took to bed with her at night to watch videos. She messaged E.P. to come and pick her up. E.P. asked what was going on and she was scared to tell her but eventually did. E.P.’s mother got involved and said E. could not drive after midnight. They both encouraged A.H. to contact the RCMP but she did not want to hurt L. and did not want to believe what happened.
[35] After a while she then went to L.’s room and woke L. up. L. then came to her room and A.H. fell to her knees crying and told L. what happened. L. went back to her room to talk to Mr. G.. Mr. G. came to her door and tried to apologize to her. He said “I am really sorry A.”. She told him “no” and was terrified. He started to come into the room and she yelled and screamed at him. He said again “I really am sorry”. He just shook his head and walked away. A.H. heard L. and Mr. G. arguing in the kitchen, the door slam and the car start.
[36] L. came into her room and told her he was gone. She went into the living room with L. and told her exactly what had happened. They sat on the couch talking and she asked L. where Mr. G. would have gone and she said he has probably gone to kill himself. L. repeated that a few times. L. convinced her to call the RCMP and when she did the lady on the phone said they were already on the way because E.P. and her mom had called them.
[37] The RCMP arrived at the house with Mr. G. The constable told her to go into her room if she would feel safer there. She did. She gave the RCMP officer a statement at approximately 3:00 in the morning on May 19 when he came back after taking Mr. G. to the police station.
[38] In cross-examination, A.H. stated that Mr. G. rubbing her legs went on for about thirty minutes while L. and her mother were present. It was 10:45 when they went to bed – she was sure because she saw the time on the television. She agreed that there was no possible way that she could have messaged E.P. before 10:45.
[39] She acknowledged that when Mr. G. apologized he did not say what he was apologizing for.
[40] When she left the next morning at 8:00 am with her maternal grandmother she saw Mr. G. sitting in a small blue Dodge car across the road.
E.P.
[41] E.P. was called as a witness by the Crown. She is 19 years old. In May 2020 she was living with her mother in […], […] County, Nova Scotia. She confirmed receiving a text from A.H. at about 10:40 p.m. on the night of May 18, 2020. Her mother became involved and called the RCMP dispatch sometime after 11:00 pm.
[42] In cross-examination, a copy of the text messages were introduced establishing that the first text sent by A.H. to E.P. was at 10:38 pm which read “em you up” followed by a second message “i need help”. In re-examination, E.P. confirmed the contents of the exhibit were true and accurate.
Cst. Nathan Sparks
[43] Cst. Nathan Sparks is an 11 year veteran of the RCMP and on May 18, 2020 was working from the […] Detachment. He received a complaint of sexual assault from E.P.’s mother regarding A.H. and her grandfather. As he was driving towards the Residence he saw Mr. G.’s vehicle, stopped it and had a conversation with him. He asked Mr. G. where he was off to and Mr. G. responded that he was just driving around. Mr. G. then drove home and Cst. Sparks followed. When they arrived at the Residence he entered and observed A.H. and L. were both distraught. A.H. told him what had happened between she and her grandfather. He arrested Mr. G. for sexual assault and placed him in his police vehicle and read him his Charter rights from a Charter card. Mr. G. indicated he understood and declined to speak with a lawyer. He did not speak to Mr. G. on the drive to the Detachment. It is his practise not to do so until the recorded statement is taken.
[44] He placed Mr. G. in an interview room and gave him a glass of water. He was alone at the Detachment. He could not get the video recorder to work so he took a recorded audio statement beginning at 1:10 am. He then drove Mr. G. back to the Residence so he could get his car. L. gave Mr. G. some money and he left. Cst. Sparks then took recorded audio statements from L. and A.H.
L.G.
[45] L.G. was called as a witness by the defence. She was obviously anxious during her testimony. She testified that A.H. came to live with her and Mr. G. in February 2020. On May 18, 2020 they were all in the living room watching television. She described A.H. as “spread right out” with her legs on her grandfather. She got up and went to the bathroom. She then decided to go to bed and changed into pyjamas and tried to lie down, but leg pain caused by arthritis was too painful to let her rest and she returned to the living room. She was back in the living room before 10:00 pm because the show “The Science of Stupid” was not quite over.
[46] A.H. got up from the couch at about 10:15 and picked up L.’s computer like she did every night, kissed L. on the head and went to bed. L. and Mr. G. went to bed at 10:30 p.m. About 40 minutes later, A.H. came to the door and asked to see L. L. went to her room and A.H. sat cross-legged on the bed and said “he assaulted me”. L. asked “who?” A.H. said “Grampy”. L. then went back to her room. Mr. G. was putting his jeans on and asked her if everything was ok. She asked Mr. G. if he touched A.H. He said “Oh God no, not on purpose, I went to get up to use the washroom and me hand slipped.” That was it, Mr. G. went out the door.
[47] Mr. G. did not go into A.H.’s room after this.
[48] As they were watching television the ceiling light was on in the living room. She did not observe anything going on between A.H. and Mr. G. She is herself a victim of sexual abuse.
[49] She emphatically denied telling A.H. that Mr. G. had probably gone to kill himself.
[50] In cross-examination, she said that the drawing made by A.H. marked Exhibit 1 was a good representation of the layout with the exception that the positions of L. and L.’s mother should be reversed, with her sitting in the chair closest to the door.
[51] She estimates that she was out of the living room for a total period of 15 minutes. She left to use the washroom and when she was returning 5 minutes later she saw her mother leave the room.
[52] When A.H. told her that Mr. G. had assaulted her, her exact words were “Nanny he assaulted me… I can forgive him but I can’t forget”.
[53] When she went to talk to Mr. G. and he told her about his hand slipping he was putting his jeans on and then said “I am not going to listen to this bull” and he walked out the door. This is inconsistent with her earlier testimony that Mr. G. alleged that his hand slipped.
[54] After Mr. G. left the Residence, L. sat on the couch with A.H. She asked A.H. if she had contacted the police. A.H. answered no and then picked up the phone to contact the police. She did not encourage A.H. to contact the police.
[55] In L.’s recorded statement to Cst. Sparks, she said that A.H. told her that Mr. G. had “sexually assaulted” her. She acknowledged knowing that she was to tell the truth to Cst. Sparks and that she did her best to tell the truth. She maintained in her court testimony that A.H. had said only “assaulted”. She suggested that every time someone tells her they were “assaulted” she thinks “sexually assaulted” and does not mean to. She then testified that A.H. said “he touched my privates”. She had not previously said that in direct examination or in the recorded statement.
[56] L. would not agree with the Crown that her memory would have been better when she gave the statement that night. She says that when her anxiety gets high things come out the wrong way and that night she could not remember exactly what Mr. G. told her. With respect, the question was what A.H. told her.
[57] She also told Cst. Sparks in the course of giving her statement that she had not discussed what happened that night with Mr. G. This is both internally inconsistent with what she already told Cst. Sparks within the statement and contradictory to what she testified to in court.
[58] L. asserted in court that she and Mr. G. had not discussed the events of that night at all since that night.
[59] I am unable to accept the evidence of L.G. as reliable as to what was said to her by A.H. and what was said by Mr. G. after the alleged offence occurred. That testimony was not internally consistent and was contradicted by her statement to Cst. Sparks. In my view she was attempting to be supportive to her husband and was selective as to what she remembered and what she did not.
Analysis
[60] I wish to first refer to the comments of Justice Cromwell (as he then was) in R. v. Mah, 2002 NSCA 99, at para 41:
41 The W. (D.) principle is not a "magic incantation" which trial judges must mouth to avoid appellate intervention. Rather, W. (D.) describes how the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choose between alternative versions and, having done so, convict if the complainant's version is preferred. W. (D.) reminds us that the judge at a criminal trial is not attempting to resolve the broad factual question of what happened. The judge's function is the more limited one of deciding whether the essential elements of the charge have been proved beyond reasonable doubt: see R. v. Avetysan, [2000] 2 S.C.R. 745, [2000] S.C.J. No. 57 (S.C.C.), at 756. As Binnie, J. put it in Sheppard, the ultimate issue is not whether the judge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminal trial is not credibility but reasonable doubt.
[Emphasis added]
[61] Having considered the evidence of Mr. G. carefully I find that I do not believe all of the defendant’s evidence. In particular, his statements to Cst. Sparks contradict the suggestion at trial that any touching was due to his hand slipping and that it was accidental not intentional. He told the police that he knew what he did, that the touching was wrong, that it should not have happened, and that it would not happen again. L.’s statement to the police made no mention of this “slipping”. Any reasonable observer would think that nothing could have been more “front of mind” and important to Mr. G. and L. than to explain to the police that the touching was incidental and accidental. Mr. G. suggested in his testimony that he told Cst. Sparks that the contact was accidental when he was in the police vehicle. I do not believe that to be true.
[62] I also find that Mr. G.’s evidence does not alone raise a reasonable doubt that the touching was unintended for the reasons expressed above. I therefore need to proceed to the third step of W.(D.), an assessment of the evidence as a whole.
[63] In relation to the evidence of the complainant generally, I have concerns. I agree with the Defence submission that in general the complainant’s evidence was exaggerated.
[64] I start with the timeline. The complainant is adamant that the events described started before L. and L.’s mother left the living room. I find it difficult to believe that L. and her mother would have been unaware and unresponsive to Mr. G. rubbing his granddaughter’s upper legs and thighs, and between her thighs close to her vagina, particularly if this was ongoing for 30 minutes. Given his position on the right side of the couch this would have been plainly obvious to anyone sitting in the chairs occupied by L. and her mother. The evidence of the complainant and L. is contradictory about where L. was sitting and if the ceiling light was on.
[65] The complainant is adamant that L. and L.’s mother left the living room at 10:45pm because that time was shown on the television. L.’s evidence is that she was gone from the room for 15 minutes and her mother was gone from the room for 10 minutes before L. returned. L. said her return was before 10:00 because the show, “The Science of Stupid”, was still on. The complainant testified that there was no way that she could have messaged her friend E.P. before 10:45. The exhibited copy of the messages exchanged clearly shows that the complainant first messaged E.P. at 10:38 p.m. The complainant’s timeline of which she was so certain is wrong.
[66] The complainant says that after she and Mr. G. were left alone in the room, the unwanted rubbing of her vagina over her pants, inside her pants and the digital penetration of her vagina by Mr. G. went on for 10-15 minutes. This could not be so if L. is correct about how long she and her mother were gone from the room. The complainant says that she was huddled up in the corner of the couch when L. returned to the room. L. did not observe that.
[67] The complainant says that when she woke L. up and she came to the complainant’s bedroom, the complainant fell to her knees crying and told her what had happened. L. says that the complainant sat cross-legged on her bed. The complainant says she screamed at Mr. G. when he tried to enter her room to apologize. L. says this did not happen.
[68] Events may have happened as the complainant described. It is not my role to determine what happened in the living room that night or whether I prefer the evidence of the complainant more than the person charged. The question I have to answer is whether, based on all of the evidence, the Crown has proved beyond a reasonable doubt that Mr. G. committed a sexual assault.
[69] Having considered all of the evidence I find that I am left with a reasonable doubt as to whether Mr. G. intentionally touched the complainant.
[70] I find Mr. G. not guilty of the charge of sexual assault.
Norton, J.