SUPREME COURT OF NOVA SCOTIA Citation: R v. B.D., 2016 NSSC 305

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: R v. B.D., 2016 NSSC 305 Date: Docket: SYD No Registry: Sydney Between: Her Majesty the Queen v. B.D. Defendant LIBRARY HEADING Judge: The Honourable Justice Patrick J. Murray Oral Decision: October 6, 2016 Subject: Issues: Result: Sexual assault and unlawful confinement. Mr. G. testified he was woken in the middle of the night while being sexually assaulted by Mr. D. Mr. D. maintained his innocence and that no such assault had occurred. Court was not satisfied that the Crown has met its burden of establishing Mr. D. s guilt beyond a reasonable doubt. Mr. D. was acquitted on the charge of sexual assault involving Mr. G. and also with respect to the unlawful confinement. Cases cited: R v. WD, [1991] 1 S.C.R. 742; THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

2 SUPREME COURT OF NOVA SCOTIA Citation: R v. B.D., 2016 NSSC 305 Date: Docket: SYD No Registry: Sydney Between: Her Majesty the Queen v. B.D. Defendant Restriction on Publication: Pursuant to s. 486 of the Criminal Code of Canada Judge: Heard: The Honourable Justice Patrick J. Murray October 4 and 5, 2016, in Sydney, Nova Scotia Oral Decision: October 6, 2016 Counsel: Mark Gouthro for the Crown Blair Kasouf, for the Defendant, B.D.

3 Page 2 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judge or justice may make an order directing that any information that could identify the complainant or witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, , , , 346 or 347. (ii) an offence under subsection 146 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1)( assault with intent) of the Criminal Code, chapter C-34 of the Revised Statues of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any subparagraphs (a)(i) to (iii).

4 Page 3 By the Court (Orally): [1] This is my oral decision. [2] Mr. D. is charged that he did commit a sexual assault on K.G. contrary to section 271 of the Criminal Code of Canada at or near Glace Bay, Nova Scotia and he s further charged with unlawful confinement of K.G. contrary to section 279 both in March of 2015 as set out in the indictment. [3] Mr. G. testified that he worked with Mr. D. for the same construction company, [ ]. They had been to Cape Breton prior to March, most likely November, December of They had done some work for [ ], painting, repairing this sort of thing. [4] Mr. G. is the project manager. [5] While they were here they stayed in one of the empty apartments managed by [ ]. The first time they stayed in a building across the street from the building where the offences are to alleged to have occurred. A building managed by MG often referred to in the evidence as M. or M. s apartments. M. has a wife as well who works with him. He is the superintendent for all of the tenants in a number of buildings. [6] Mr. G. gave evidence for the Crown, he described that both he and Mr. D. drove from [ ] on March 10 th in Mr. G. s car. Mr. G. does not drive long distances. It was Mr. D. that actually drove Mr. G. s car to Sydney. [7] They arrived around supper time according to Mr. G. The drive was approximately 5 hours long. The trip was specifically to retrieve belongings that they had left previously. [8] The evidence was that they were supposed to return in three days after the November visit and did not. The company was experiencing difficulties. They had been trying to retrieve equipment from various locations. [9] The owner of the company [ ] was having difficulty and his employees felt they were not being treated properly. [10] At any rate, on March 10, 2015 they did come to Sydney first and retrieved some equipment and then proceeded to Glace Bay. [11] I am not going to go into all of the detail except that it was decided that they would stay in Glace Bay for the evening. Initially they were not sure of what arrangements would be made, but MG had an available apartment, one in his building on the main floor where he also resides. [12] Mr. G. said he and Mr. D. slept on separate air mattresses. After they arrived he had been experiencing a headache. He had migraines in the past and asked Mr. D. to drive him to a pharmacy, Pharmasave, which Mr. D. did. While he was there Mr. G. said he noticed that his car pulled away and after he returned from getting his medication which was Tylenol, he noticed a

5 Page 4 Liquor Commission bag with a thick or wide bottle in it. He described Mr. D. as having purchased a 40 ouncer, which he also described as a quart. Said he used those terms interchangeably. [13] They returned to the apartment. There was drinking according to Mr. G. MG was there and possibly his wife. According to Mr. G., it was 3:00 a.m. before MG left and he and Mr. D. turned in. Before doing so Mr. G. changed his clothing and got into a hoodie, a t-shirt and yoga pants, his usual attire for sleeping. [14] Mr. G. said he was very careful and cautious regarding his surroundings and kept an eye on things making sure everything was set, his phone and keys and so on. [15] Mr. G. testified he is not fond of alcohol and did not drink that evening. He said that the other gentlemen had been drinking with Mr. D. drinking the most, three quarters of the quart and MG drinking about a quarter of the quart bottle. One drink by MG for every three drinks by Mr. D. Mr. G. was quite specific in giving that evidence. [16] He was also specific in his evidence about his medication and about what he took. I m not going to get into describing what the medication was but he takes medication for depression and he also takes sleeping medication. Two pills 7.5 grams I believe was the prescribed dosage for the sleeping medication and they work differently for different people, and can take anywhere from 5 minutes to an hour to become effective. It did take him a while to get to sleep but eventually he did fall asleep. [17] At any rate, Mr. G. testified he was woken in the middle of the night, while being sexually assaulted and he described the assault by stating that Mr. D. had his erect penis penetrated into Mr. G. s anus and he had his hands pressed down on his back. Mr. G. was lying flat on his stomach. [18] Mr. G. did his best to try to get away, described a bouncing motion on the air mattress. He said that Mr. D. s knees were straddling Mr. G. outside of him and eventually they stood up and at that point Mr. D. had him in a bear lock or hug. While standing he said Mr. D. had ejaculated. After being released Mr. G. went straight to the bathroom, cleaned himself up and tried to calm himself and take in everything that was happening, was his evidence. [19] He took the soiled clothes, as he described them, and put them in a bag, the plastic bag that was used to get his medication from the pharamacy. He later threw them out including the face cloth that he used to clean himself in the bathroom. [20] Mr. G. said as far as conversation there was none, other than Mr. G. saying no and stop, or words to that effect, but Mr. G. did indicate that afterward that he said to Mr. D. Am I going to have any further trouble from you tonight, to which Mr. G. said Mr. D. replied no. [21] He basically said he didn t sleep for the rest of the night and stayed awake, as difficult as that was and that they drove back home the next day with little and no conversation about the matter.

6 Page 5 [22] It was about two months later around May 7, 2015 that Mr. G. decided to go to the police. He had informed his partner, J, and said that immediately upon informing his partner, his partner told him to contact the police and that if he did not his partner would. He said he phoned police immediately, or within an hour of speaking to his partner. [23] Eventually the police got involved and charges were laid against Mr. D. We have in evidence as Exhibits 1 and 2 a Memorandum and an . Essentially there really is no physical evidence available. Those exhibits indicate for the reasons stated therein that it was not possible or feasible to perform DNA testing. There is the photographs in Exhibit number 3 as well which were tendered by the Defence. Those photographs having been verified as being taken by Mr. D. himself with his phone at the apartment on the evening in question. His reason for taking the photographs was to photograph MG s dog. [24] Mr. D. has denied assaulting Mr. G., and gave evidence that nothing of the sort happened. He had been drinking, and said he had been playing guitar. He knew he had a 6 hour drive ahead of him the next day. He had bought a pint instead of a quart. It was whiskey but it was not Wiser s it was Golden Wedding, his usual brand. [25] He did drink the pint, he drank it straight from the bottle. He was not sharing it with anyone else. He was impaired he said to the point of not being able to drive and probably slurring his speech near the end, but otherwise he had no difficulty remembering that evening. He had to drive the next day, and said he went to bed at about 12:15 a.m. [26] Mr. D. said he does not understand where these allegations came from. He is confused by it. He got along generally speaking with Mr. G. He described that he dropped Mr. G. off at the Pharmasave, waited for him, and then went to the liquor store, he did not leave without Mr. G. as alleged by Mr. G. As to his memory and recollection, he does not believe he blacked out or forgot anything. Such a thing has never happened to him in the past. [27] In terms of further evidence, evidence was also given by MG. Clearly MG denied having anything to drink. He gave a reason for it, that alcohol had killed his father so to speak, and that he just was not prepared to drink and did not drink that evening. [28] He said he stayed at the apartment but nowhere near 3:00 a.m. only for a relatively short time talking to the gentlemen. Mr. D. said he stayed up to two hours, that is not consistent with what MG said but both Mr. D. and MG say that MG did not drink and of course this is not what Mr. G. said. [29] Mr. G. s evidence was given in a very certain, matter of fact manner. He was specific and even confident when giving it. He described the evidence of the assault, how it happened, that he woke up, groggy, his evidence flowed reasonably well in the manner he described the evening. For example, he said he was in shock when it happened that he wanted to avoid further contact or not provoke anything further that evening and kept to himself and that s how he dealt with it.

7 Page 6 [30] Mr. G. on cross-examination was challenged. For example, he stated a couple of times in his direct that he was wearing a hoodie and that when he was startled or awoke during the assault that the only thing that he had on was a t-shirt and that he had not removed any of the other items himself. [31] On cross-examination it came out that perhaps he did not have a hoodie and that a hoodie was part of his normal clothing for sleeping and he assumed that he did. Further, he said he went immediately to the police within an hour of speaking to his partner but he was challenged on that and acknowledged that it could have been the next day, so instead of an hour it was a day later. [32] There was further evidence that when he was awaken and after the alleged incident he realized he had no keys, suggesting that Mr. D. had taken his keys after he had fallen asleep, but that he still had his phone. Then on cross-examination it came out that his phone did not reappear until he found it on the back seat of the vehicle the next day. There was confusion around his evidence on the phone. [33] He stated that both MG and Mr. D. were drinking. They were both drunk. [34] MG would be more of an independent witness in regard to the matter at least on its face. There was a utility room between the apartments. MG said that he had a dog, that will bark at noise or anything that moves and the dog did nothing that evening. The utility room was about 8 X 8 and located between the two apartments. On cross, Mr. G. admitted to some yelling and screaming, not for help but for the alleged assault to stop. This is just another point in the overall circumstances. [35] I have some concerns with Mr. G. s recollection of events. I m not suggesting that he was not being truthful because he gave his evidence in a credible manner and he was confident in many ways, especially in direct. I concur with the Crown when for example they say Mr. G. s explanation for delay in reporting is reasonable, thinking he could handle it himself and not coming forward because he lived in a small town. Similarly with respect to the distinctive lights on his car. [36] In cross-examination however, some things came out that made me question whether his recollection of events is reliable. [37] It has now been 18 months previous and he said himself he blocked this out for a long time. It stands to reason there would be some discrepancy or inconsistency on certain matters or details that don t necessarily go to the heart of the matter, but are important nonetheless as in criminal matters the Court must consider the entire evidence. [38] Mr. D. gave evidence in his own defence and in that instance the case of R v. WD, [1991] 1 S.C.R. 742, will apply. I will not recite the test verbatim, the Court must be mindful that the Crown has the burden of proof at all times and that the burden of proof is beyond a reasonable doubt and it never does shift to the Accused.

8 Page 7 [39] Mr. D. as well gave it in a forth right manner. He was not evasive, I found. He was not accusatory, he was respectful in speaking of the Complainant. He admits to the driving as was described. He admits to drinking. He however said he did not have a 40 ouncer or a quart but rather it was a pint of whiskey, Golden Wedding. He said he had a 6 hour drive ahead of him and was cognizant of that the night before. [40] He indicated he offered to play guitar and MG was concerned that it was too late for that. That suggestion that perhaps MG was not up to staying up to the wee hours of the morning. [41] So there are essentially three different versions in terms of MG s involvement in terms of how long he stayed. In terms of how late he stayed I don t think MG was there until 3:00 a.m. [42] As to whether he drank, both he and Mr. D. said no. [43] In terms of Mr. D. s evidence, I found his memory was good. His recollection of detail was as well. For example, the items he retrieved from the closet, he was able to describe each and every one of them. As well, he described the items he retrieved with the RCMP and [ ]. He was very specific and named them all. That was typical of his evidence in general. [44] Mr. D. remained calm, he answered questions, it was suggested to him that in his state of drunkenness he did assault Mr. G. as described by him. He made a clear, definite denial without trying to add to embellish his answer. He did not display ill will towards the Complainant. He said he s confused by the allegation and I found him to be credible. [45] This is not a credibility contest and it is not a matter of choosing one version of events over another or simply deciding who is more credible. It is a matter of whether the Crown has discharged its burden of proving beyond a reasonable doubt that Mr. D. committed these offences. [46] If I believe the Accused or if his evidence leaves with me a reasonable doubt I must in acquit Mr. D. The case of R v. WD is there to guide the court with respect to the burden of proof when the accused testifies or the defence leads evidence. There is the third step as well as cited in WD. [47] Mr. D. had a lot to drink. A full pint is a lot of alcohol especially drinking it straight. For that reason I cannot say with certainty that I believe all Mr. D s evidence. His evidence however, in the context of all the evidence, does leave me with a reasonable doubt as to his guilt and what happened that evening. [48] Mr. D. was not shaken on his evidence. The Crown to its credit has acknowledged this. MG s evidence factored in as well as referenced earlier in my decision. [49] For all of these reasons I am not satisfied that the Crown has met its burden of establishing Mr. D. s guilt beyond a reasonable doubt in relation to these offences.

9 Page 8 [50] I am therefore acquitting him on the charge of sexual assault involving Mr. G. and also with respect to the unlawful confinement charge as well. [51] I would like to thank counsel for their conduct of the case and cooperation throughout the trial. This concludes my oral decision. Thank you. Murray, J.