R. v. Strong

R. v. Strong Court Supreme Court Date 2007-05-29 Citation 2007 NSSC 268 Docket Cr Am 274829 Judge/Registrar/Adjudicator Scanlan, J. Edward (Honourable Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Strong , 2007 NSSC 268 Date: 20070529 Docket: Cr. Am. 274829 Registry: Amherst Between: Her Majesty the Queen v. Lealand Rupert Strong Restriction on publication: pursuant to s. 486.4 of the Criminal Code Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice J. E. Scanlan Heard: 28 & 29 May 2007, in Amherst, Nova Scotia Written Decision: 12 September 2007 Counsel: Mr. Bruce Baxter, for the crown Mr. Robert Gregan, for the defence Publishers of this case please take note that Section 486.4 of the Criminal Code applies and may require editing of this judgment or its heading before publication. The subsection provides: 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under section 144 (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 Statutes 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; By the Court: [1] Both counsel have referred to R. v. D. (W.) either directly or indirectly, and I make it clear that this is not a case wherein the court is in any way trying to choose between the evidence of one witness and the other, or a number of witnesses as against the accused. The court of course, if I were to believe the accused on his evidence, I would be left with a situation where I would simply have to weigh the evidence and ask myself as to whether or not he made a reasonable inquiry as to the actual age of the accused. If I was satisfied beyond a reasonable doubt that he did not make a reasonable inquiry...and the burden stays on the crown throughout on that issue as well...then I would be in a situation where, if I believed the accused, I would basically have to acquit. As I said, it’s not a matter of choosing as between his evidence and the evidence of the other witnesses. [2] As I listened to the evidence of the accused, I was impressed by the number of inconsistencies that he had within his evidence, even here today, and some of the excuses that he made as to why he decided, back when he was giving interviews to the police, as to why he wouldn’t tell the truth to them about certain events surrounding the incident. In one case he described them as crooks and wouldn’t believe them, and then when he was talking about the R.C.M.P. and Constable Townsend, he said he wouldn’t tell him everything because he wasn’t really a real member of the Amherst Police Department. Alternatively, he said he was scared because he had a criminal record and he didn’t want to be put in a situation where he wouldn’t be believed simply because of his criminal record and he was scared. That’s all possible, but it doesn’t help the accused in terms of building his credibility. As he went through the evidence here today he even found it difficult, in terms of explaining on a consistent basis, what the situation really was. It wasn’t a matter of saying he forgot. In many cases he told the court what the facts were, according to his evidence, and then when pressed in cross examination, contradicted himself and seemed to think that it really didn’t matter. In terms of his evidence as I weigh his evidence and consider his evidence in terms of the internal inconsistencies, there are repeated difficulties with his evidence. That, when you compare it with the evidence of a number of other witnesses, makes it very difficult for the court to put much credence in the evidence of the accused in this case. [3] Having said that, I again refer to the R. v. D. (W.) case. I’m not going to go through step by step counsel, but as I go through the evidence, I satisfy myself that it didn’t really leave me with a reasonable doubt or raise a reasonable doubt. I go to the final test and ask myself in terms of the totality of evidence as to whether or not the crown has proven its case beyond a reasonable doubt. The evidence of the complainant in this case, M.O., was that no matter what her age was at the time of the offence, that she did not consent. She said that the accused was told that she did not want to have sexual intercourse with him. She said she was there babysitting for Gail Strong. While I talk about the babysitting for Gail Strong, I am satisfied, contrary to the evidence of Gail Strong, that M.O. did babysit for her on one or more occasions. In addition to that, I am satisfied that A.G. babysat for her on one or more occasions. To put it bluntly, the complainant said that during the sexual intercourse and the events leading up to it, that she was not consenting. She was pushing the accused away. There was “a knife or whatever” were the words that she used. She said it was something sharp. If it wasn’t a knife it was something really sharp, she said. She tried to push him away. She says he took off her pants. She said “it went on for an hour or whatever and it hurt”. She said that after he took off her pants, he put them in the closet in the hallway, and that after the intercourse ended, he went upstairs to the bathroom. At that time she called the cell number that she was given for Gail Strong, said she was leaving, and left before the accused came downstairs from the bathroom. It’s no small point that the accused gave at least two different versions as to what transpired after the sexual intercourse. When he was talking at one point he talked about her having been gone when he came back downstairs. At another point he talked to her just leaving as he came downstairs. [4] As I compare the evidence...and again it’s not a straight comparison, counsel. I’m not doing that. I’m looking at the totality of the evidence. But as I compare the evidence and ask myself, is the evidence of M.O. credible as regards the incident itself. Did she just get up and leave when it was done while he was upstairs in the bathroom? I certainly accept that she did leave while he was in the bathroom upstairs. She wanted out of there. She was a scared, hurt 12 year old girl. I note as well, and it will be relevant to an issue which I will address later on in the decision, but she said she told him she was in grade 7 and she was going to be 13. I accept her evidence on that point. I accept the evidence as well of the accused who said, as to A.G., that she told him, that is A.G. told the accused that she was 15, but her father told him different and said that she was 14. E.M. said, in her evidence, “we did not keep our age a secret”. As to her own age said, “everyone knew my age”. [5] As I viewed the witnesses here today and yesterday, I have to concur with the comments of the crown. That is; if anybody looked to be 16 or older, or mature I should say, it was E.M. As I viewed A.G. and the complainant, one would look at them, and if they were suggesting they were 15 or 16 even today, you would take a second look. [6] The accused says, in terms of age, he says look, they were there drinking on a regular basis. He talked about knowing them for months. Smoking, talking about on one occasion they were dropped off by the mother of a young boy, and there were the three girls, I believe it was he described, plus two young boys. One was blond and had two bags of beer. The other guy had a hat and one bag of beer. They were dropped off and they looked to be 15 or 16. He knew they weren’t of age to be drinking, but if their mother was dropping them off with bags of beer, then it must have been okay. [7] The accused knew, in terms of the age of this complainant, that she was going to * Junior High School, grades 7 and 8. He explains that away by saying he once had a girlfriend who was 16, and he said his ex-girlfriend went to the * School. I should think that if he knew the age of A.G., if as E.M. said, everybody knew her age, then he should have been alerted to the fact that maybe he was playing with fire by being involved, even if there was any alleged consent from the complainant. I go back to the fact that I’ve already found, and I’m satisfied that there was no consent. But even if this 12 year old child did consent, or utter the words of consent, and act as though she were consenting, I have a great deal of difficulty accepting that he could have formed an honest but mistaken belief. [8] I refer to a number of cases that were given to me by counsel. This was not a case of a couple of girls going into a bar on one occasion, and suggesting that they were old enough to drink in a public bar. This was a case where this accused had repeated opportunities to know and see these children. He talked about the silly little notes, silly little things that these children were doing, specifically as to what the complainant was doing. It’s not as though he wasn’t old enough to be on alert so as to make this inquiry. He was 23. She was 12. One of the cases suggests that the older you get, the more relevant or more important it is, in terms of the degree of the inquiry that you should make. I’m not sure if age helps you overcome stupidity, or if age makes you a better judge in terms of the age of a young person, but in this case, at best, even if the complainant had lied to him at some point in time, he would have thought she was 15, because he said she told him she was 15 or 16. So I suspect that he would want to be reasonably cautious given his age, and if she was 15 or 16, or he might want to take some care and make a reasonable inquiry. But again, I go back to the issue of credibility. I’m satisfied in this case that not only did he not make a reasonable inquiry, but that the complainant actually told him that she was 12 and going to be 13. The issue of honest but mistaken belief really doesn’t even come into play. He knew because of what she told him. He chose to ignore that and to ignore her pleas not to have sexual intercourse with her. [9] I am satisfied as well that all the to-in and fro-ing with the officers in relation to the issue of the knife was based on the fact that he did not want to be placed in a situation where the R.C.M.P. or the Amherst Police Department could determine that he in fact had a knife. As I listened to the evidence in this case, I am satisfied he did have a knife. He even admitted it in his own evidence here today, although he tried to explain it away by saying that as she had her legs wrapped around him, the fork in the knife, the swiss army knife was sticking into his side, so he decided to take it and put it on the coffee table. I don’t doubt that it ended up on the coffee table, but I do accept the evidence of the complainant that, before it went to the coffee table, she had an opportunity to feel this sharp object and to see it, and it was all part of this sexual encounter that was unwanted by a 12 year old girl. [10] As I said, I am satisfied, after considering all of the evidence, beyond a reasonable doubt that this accused did have sexual intercourse with this complainant. It was without her consent, and even if she had consented, he did not make a reasonable inquiry as to her age. In fact, I am further satisfied that she told him she was not 14, that she was 12, and that he did possess a weapon, to wit a knife. As regards all of the collateral issues in terms of time, date, place, jurisdiction, counsel, those really are not at issue here. I am satisfied that they have all been proven, in any event, by the crown. A conviction will enter. [11] I was listening to the evidence of the accused as he testified, and he says “you cannot rape the willing”. I want to point out to him that you can if they’re 12 years old, and the law suggests that they cannot consent, because they don’t have the capacity. That happened here. J.