R v Purchase, 2011 ABQB 643

Court of Queen ’ s Bench of Alberta Citation: R v Purchase, 2011 ABQB 643 Date: 20111021 Docket: 080244817Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Robert David Purchase Accused Restriction on Publication: By Court Order, information that may identify the Complainant may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________

Summary [ 1 ] The Accused pleaded guilty to count 3 and count 4 which are two failures to appear contrary to Section 145(4) of the Criminal Code of Canada . He pleaded not guilty to the two other charges being sexual assault contrary to

Section 271 and unlawfully touching for a sexual purpose a person under the age of 14 years contrary to

Section 151 of the Criminal Code . [ 2 ] These charges relate to events that happened in Edmonton in September 2005. At the time of the alleged incident the Complainant was 13 years old having turned 13 in March 2005. The Accused was 26. [ 3 ] What is not in dispute is that sexual intercourse took place between the Accused and the Complainant and as between the Complainant and the Accused’s friend Mr. Mike Heinrichs. Mr. Heinrichs was in his early to mid 20's.

This sexual intercourse took place in the back seat of a car while it was being driven around Edmonton. [ 4 ] What also is not in dispute is that the Complainant was passed out while Mr. Heinrichs had sexual intercourse with her. [ 5 ] There are 2 issues to be decided in this case: 1. Firstly the issue of consent. Did the Complainant consent to the sexual intercourse with the Accused and did the accused know that she did not consent? 2.

Secondly, since the Complainant was under14 years at the time the Accused had sexual intercourse with her, did he take all reasonable steps to ascertain the age of the Complainant as required under

Section 150.1(4) of the Criminal Code ? Evidence [ 6 ] The Complainant, her aunt Ms. P., several police officers and the Accused testified. [ 7 ] Also put into evidence by agreement was: 1. The evidence of Dr. Melanie Lewis who was qualified as an expert being a forensic paediatrician. She described the results of a forensic examination she did on the Complainant the day after the events. 2.

A video recording of an interview between a member of the RCMP and the Accused that took place on March 1, 2007 being approximately 18 months after the events. [ 8 ] The Complainant was born in March, 1992 and lived a large part of her life with her mother in [...], B.C. (Her father lived in Edmonton). [ 9 ] She met the Accused in [...], B.C. She met him just before going into grade 7, being 2004. At that time she was 12. She used

[ 9 ] She met the Accused in [...], B.C. She met him just before going into grade 7, being 2004. At that time she was 12. She used to hang out at the Accused’s apartment with her friends. Her friends were a few years older then she was. She moved to Edmonton in June or May 2005 to live with her aunt as her mother was getting sick and could not look after her. She was 13 at the time. Her aunt lived in southwest Edmonton by Heritage Mall. Michael Heinrichs was a friend of the Accused who she met at the same time as she met the Accused.

Michael dated her friend M.. [ 10 ] On the day of the incident (September 11 th , 2005) Mr. Heinrichs called the Complainant to say him and the Accused were coming to Edmonton from Calgary. She recalls that her aunt had grounded her that night but let her out because these were friends from out of town. She might have told her aunt it was M. that was coming with the men in order to get out of the grounding. [ 11 ] She met them at the Heritage Mall parking lot where they were sitting in a four door silver car. She had not seen them since April 2005.

She got into the car and the three of them went to a park with a gazebo close to Whyte Avenue. They stopped there to see if she could get one of her friends to join them. [ 12 ] At the gazebo there was a number of young people hanging out and she asked a girl she knew to come with them. The girl refused. She testified that the kids at the gazebo were basically poor kids and virtually homeless. She denies getting a bottle of tequila from them. [ 13 ] The Complainant had not drunk that day. She testified that she was offered tequila in the car from a 26 or 40 ounce bottle. She jumped at the chance.

She does not recall who offered her the liquor. She was also given a little water bottle that had pop in it. The two men joked that it was liquid acid. She was in the back seat and she believes Michael was driving. [ 14 ] Later the Accused came into the back seat. She testified that at that point she was feeling really drunk, sick, and her head was spinning. She had drank a lot more then she should. The bottle was full when she started, she does not remember how much she drunk. She does not remember if anybody else was drinking.

She became really drunk. [ 15 ] When the Accused was beside her in the back seat she kissed him on the lips. She then leaned back and started drinking again and all she remembers is flashing lights on Whyte Avenue. At the time she was wearing shirt, pants, shoes, a sweater and a bra, panties and socks. [ 16 ] She blacked out and she doesn’t remember what happened after that point until she woke up in the parking lot. She woke up screaming. She was sitting on her bum in the parking lot in front of a pub on Whyte Avenue. Her pants were beside her, her shirt and socks were on but no panties.

She was naked from the waist down. She got up and tried to put on her pants and fell over. She then blacked out again. [ 17 ] She next remembers talking to a man in a pub or hotel. He called her father who hung up on her as she was drunk and not making sense. She then called her aunt Sandra who came to pick her up. When her aunt came to the door of the bar, she blacked out again. [ 18 ] She next remembers being in hospital where she had vaginal and blood tests done. She had cuts and bruises in the vagina area. She had scrapes on her knee and back and felt very sore in the knee, vagina, and thigh area.

The soreness lasted for a couple of days. [ 19 ] She never heard from the two Accused again. [ 20 ] In regards to her age, she did not tell the Accused her age nor did he ask. She denies telling him that she was 14 or 15. She saw him once twice a week for a couple of months in early 2005. She would go out with her friend M. to a place called Water Lily Lake about 15 minutes from [...] where Michael was living in a cabin there. They drank, smoked pot and popped pills. She was called “teeny bopper” at the cabin because she was young. She recalls one time the RCMP showing up at the cabin looking for her.

She had been absent from home for about three days and she hid in the closet.

[ 21 ] The Complainant’s aunt S.P. testified. The Complainant is her brother’s daughter. The Complainant’s mother lives in [...], B.C. and is in palliative care due to MS. The Complainant came to live with them in June or July of 2005. On September 11, 2005 the Complainant was grounded but the Complainant told her that some friends two boys from Calgary and a girl from [...], B.C. were coming in from out of town. Because it was a planned event she let the Complainant go out. [ 22 ] Later she got a call shortly after 1:00 a.m. in the morning from a bar. She went there to pick up the Complainant.

The Complainant was drunk, none coherent and confused. She was dirty, not wearing shoes and her pants were on inside out. She called the Complainant’s father and the police. [ 23 ] Cst. Sandmaier was dispatched on September 12, 2005 to do an investigation into an alleged sexual assault. She met with the Complainant and her father. She noticed that the Complainant’s jeans were inside out. She had a fresh scratch on her knee. She had poor balance, was swaying and had an inability to recall events. The Constable concluded that she was moderately intoxicated.

She had very scattered thoughts and little memory of the chronology of the events. The Complainant told her that she had been thrown from a moving vehicle. [ 24 ] Cst. Sandmaier called EMS who took her to the hospital and the Constable stayed with her until 5:00 a.m. and she was given information to come back the following day to Child and Adolescent Protection Unit at the University Hospital. [ 25 ] The evidence of Dr. Lewis was from the trial of Michael Heinrichs, and was played by consent. She was qualified as a forensic paediatrician.

She worked out of the Child and Adolescent Protection Unit at the University of Alberta Hospital. She met the Complainant on September 12, 2005 and took a blood sample, a vaginal swab within the vagina, an external vaginal swab, a collection of the vagina pool and an anal swab. [ 26 ] She also conducted a physical examination finding bruises on the neck, abrasions on the right knee and a scratch on her chin. Using a scope to do an examination of the genitalia area she found significant bruising and acute lacerations. [ 27 ] She testified that based on the following: 1.

It is unusual to have such extensive physical findings; 2. The physical findings were definitive for penetrating trauma. 3. Using a system for classifying injuries to the genitalia it could be concluded that there had been a sexual assault. [ 28 ] The Accused testified. He first met the Complainant in [...], B.C. when he was living with his friend Simon. The Complainant came with her mother to buy cocaine from Simon. [ 29 ] After a while the Accused, M., the Complainant, and Mike Heinrichs started hanging out. After Mike Heinrichs got evicted from his apartment a friend lent him a cabin outside [...], B.C.

They spent lots of time there drinking, doing drugs and having sex. The girls were not 19. The girls had to confirm their age to hang out at the cabin in order to make sure they were the legal age for sex. [ 30 ] To determine the age of the girls, he asked other girls. He also asked the Complainant directly and she said she was 16. He also would ask her at different times or at different points of conversation to confirm. He also had a trusted friend whose daughter confirmed that the Complainant was 16. He concluded that she was 16. Sometimes he dropped the girls at school.

He and the Complainant became sexually intimate on many occasions.

[ 31 ] He also saw the Complainant drinking often and got to know how she handled her alcohol. He saw her blacking out and he had lots of experience with her ability to hold alcohol. [ 32 ] He went to Calgary in June or July 2005 to work and eventually met up again with Mike Heinrichs. [ 33 ] Before moving to Calgary the Accused was advised by somebody at Simon’s house that the Complainant’s mom had told Simon that the Complainant was 13, and her mom wanted him to stay away from the Complainant. [ 34 ] While in Calgary the Complainant and Mike decided to go up and visit the Complainant.

They met her when she walked up to the car. They decided to go to a park which had a gazebo in order for her to meet some friends. She came back with a bottle of tequila and got in the car. [ 35 ] After ten or fifteen minutes the Complainant asked him to come into the back seat. He took a sip of tequila which was not good. He testified that the Complainant had not drunk much at this point. She then started kissing him. She started touching his penis and gave him oral sex. She climbed on top of him, straddled him and there was vaginal penetration.

After a few minutes he lay on top of her to finish the intercourse and ejaculate. She never asked him to stop and never said she didn’t want sex. [ 36 ] He then started driving. He recalls the Complainant giving directions. She was responding to conversation and he noticed nothing odd about her. She had more alcohol, he only had about an ounce. She appeared coherent both before and after the sex with him. [ 37 ] The Complainant then asked Mr. Heinrichs to sit in the back with her. He saw the bottle being passed and he hears Mr. Heinrichs talking saying “she was soft”. He was having sex with her.

She was passed out. Immediately he wanted to pull over. She had started to scream so he pulled over to a parking lot, parked and dragged the Complainant out of the car. [ 38 ] He and Mr. Heinrichs argued. Mr. Heinrichs did not want to leave the Complainant. He said let her go. [ 39 ] On cross-examination he testified that when he partied with the Complainant and her friend the men provided the alcohol and at least some of the drugs. [ 40 ] He acknowledged that the mother of the Complainant told him to stay away from her daughter, to leave her alone. She was young she was 13.

He did not think the mother was a reliable source because she was a “druggie”. He did not take what she said seriously. [ 41 ] When her mother told him (which was sometime in 2005 before he went to Calgary) that the Complainant was 13 he discussed it with the Complainant. The Complainant said she just had a birthday and was now 14. Even though the Complainant had been dishonest before he now believed her. He did not go back to check with her mother as he did not think she was reliable. [ 42 ] The Accused believed he obtained accurate information from the girls as to their ages.

The Complainant said she was 16 on more then one occasion. [ 43 ] The Accused testified that he was trying to be honest and truthful with Officer Lang when he provided the statement in 2007. [ 44 ] When Mike Heinrichs got into the back the Complainant was passed out. She had not passed out earlier. He pulled over because Mike was having sex with her and she was passed out

Analysis Testimony of Accused [45] The Accused testified and as mentioned previously provided a statement to Cst. Lang of the RCMP on March 1, 2007. The2007 statement was video taped. A copy of the video and a transcript was entered at trial without objection. At trial the Accusedacknowledged that when he gave this 2007 statement he was trying to be as truthful and honest as possible.

He also acknowledged thathis memory of events would have been better in March of 2007 than at trial. [46] In his testimony at trial he stated that the sexual activity with the Complainant was consensual and that he believed that theComplainant was over the age of 14 at the time of the event in September 2005. [47] As the Accused testified, the principles from the Supreme Court of Canada case R. v. W.(D.), (SCC), [1991]1 SCR 742 are applicable. [48] Dealing firstly with the evidence of the Accused on the issue of consent.

I do not believe the evidence of the Accused as itrelates to the issue of consent nor do I find that it raises a reasonable doubt. [49] I come to those conclusions for the following reasons: 1. The Accused’s evidence at trial on this issue was significantly inconsistent with the prior statement he had given in 2007. 2. Some of the Accused’s evidence relevant to or connected to the issue of consent is implausible and not credible. Inconsistent evidence: 1.

Evidence re: the capacity of the Complainant to consent prior to sexual intercourse [50] At trial the Accused described the drinking that had taken place before the sex and the condition of the Complainant at thetime of the sex as follows. He testified that after they met the Complainant she directed them to a park with a gazebo. Once there she leftthe car to go and try to get another girl to join them. She came back from the gazebo with a bottle of tequila and then they started drivingagain. After approximately 10 or 15 minutes she asked him to come into the back seat. He joined her and took a sip of tequila.

Shestarted touching him sexually. She gave him oral sex then she straddled him and there was vaginal penetration. After a few minutes helaid on top of her to finish the intercourse and ejaculate. As regards to her condition at that time of the sex he said that the Complainantwas drinking but she had not drunk much. [51] He then took over the driving. He recalls that the Complainant was able to respond and give directions. He said he did notnotice anything odd about her.

She appeared coherent both before and after sex with him. [52] In contrast in the 2007 statement at page 39 he said as follows: “And you could tell she had been drinking. And we hadn’tdrank anything yet, cause we were driving on the highway right?...She’s ..we’re cruisin around , cruisin.... And she’s got thisfuckin....it’s Tequila, but it’s the white stuff. And she’s drinking it . . .And I’m like holy she’s going to be hammered soon Right? Yuh. . .

So she’s drinking, drinking, drinkin. And then she’s like ,” we should have sex.”. I’m like .”oh yeah. “Where are we gonna have sex?” She goes, “Well right here”. So she actually gave me a blow job, which she isn’t good at “cause she had never...said she had never done it before. And then she climbed on top and she’s actually ..we’re having sex. She’s on top . I’m sitting in the back seat. Mike’s cruising around Edmonton. And then it was... I’m like..we’re driving around. And then she is sitting in the thing. And she is sitting in the back. And then I climb up front with Mike. And rolling a joke.

We smoke a joint. He’s like “look”. I look. She’s ..you. She’s passed out. and I was like, “sweet”. I was like “good”. Now we don’t have to listen to her fuckin...cause she never shuts up. So we’re drivin around ,driving around. And then I’m like. . “kay”.We’ll try and wake her up.” hey”, yu know like? “You gotta tell us where you live”. We don’t even know how to get there. And she’s like. . “na,na,na,na,na. And she’s got...she’s trying to tell us.

But she’s mumblin.” [ 53 ] Later on at page 40 he says: “she’s drunk ; she’s puking; she does not know she’s puking”. [ 54 ] The evidence of the Accused is significantly inconsistent in relation to the condition of the Complainant at the time of and immediately after the sex. [ 55 ] Another significant point is that the evidence of the Complainant as to the extent of her drinking and her condition prior to the Accused joining her in the back seat at the time is strikingly similar to what the Accused said in his 2007 statement. [ 56 ] She said at the point the Accused came into the back seat she was feeling really drunk, sick and her head was spinning.

She drank a lot more then she should. She doesn’t remember how much she drank, she was really drunk. She was intoxicated. She was wasted. She did not know what was going on. When the Accused was beside her in the back seat she kissed him on the lips and leaned back. She started drinking again and she just remembers flashing lights on Whyte Avenue and she blacked out. She doesn’t remember what happened after that point when she woke up in the parking lot. [ 57 ] There are other inconsistencies which reinforce my finding that the evidence of the Accused on the issue of consent is not credible. 2.

The circumstances leading up to Mr. Heinrichs having sex with the Complainant [ 58 ] In his 2007 statement the Accused said that Mr. Heinrichs had jumped into the back seat with the Complainant. They stopped the car, she pukes. Then they continue to drive a bit and Mr. Heinrichs had sex with her. Then she wakes up and the Accused takes her out of the car. [ 59 ] At trial the Accused said that the Complainant asked Mr. Heinrichs to sit in the back seat with them. The Accused noticed he was having sex with the Complainant while she’s passed out. The Accused wanted to pull over immediately but it took some time.

When he pulled over he dragged the Complainant out of the car. There is no mention of stopping the car to allow her to puke. 3. What happens after he stops the car [ 60 ] There is also an inconsistency as to what happened after he stopped the car and he drags the Complainant out of the car. In his 2007 statement he says he drives away (implying that he is angry with Mr. Heinrichs) then he turns around and goes back and picks up Mr. Heinrichs. At trial he testified that he got back into the car and then waits for Mr. Heinrichs to get in.

Implausible Evidence [ 61 ] Some of the Accused’s evidence is also inherently implausible. Examples are:

1. The Complainant wanted to have sex in the Car [ 62 ] In his 2007 statement the Accused stated that the Complainant did not want to have sex when there was other people around. At trial the Accused testified that he asked the Complainant “where are we going to have sex” and she said “right here”. She then gave him oral sex, climbed on top of him and they had intercourse in the backseat of the car while Mr. Heinrichs was driving them Edmonton. Taking into account his previous statement this evidence is implausible 2.

The Complainant brought the Liquor to the Car [ 63 ] In his 2007 statement the accused described how he and Mr. Heinrichs had previously always had to provide the liquor for the parties as the Complainant and her friend were under age. [ 64 ] The Complainant testified that the bottle of tequila was given to her by the Accused or Mr. Heinrichs. She denies that she got it from friends at the gazebo off Whyte Avenue. She describes these friends as being poor and basically homeless. [ 65 ] The Accused claimed that the Complainant brought the bottle of tequila to the car.

This evidence of the Accused is implausible taking into account his previous statement. [ 66 ] In addition I note the Complainant was a 13 year old student while the Accused and Mr. Heinrichs were both in their mid 20's and working in Calgary .

Summary: The Issue of Consent [ 67 ] In

summary on the issue of consent, I do not believe the evidence of the Accused as it relates to the issue of consent nor do I find that it raises a reasonable doubt. [ 68 ] Having rejected the evidence of the Accused the next question is: Has the Crown proven beyond a reasonable doubt that the Complainant did not consent to the sexual activity that took place? [ 69 ] I find that the Complainant did not have the capacity to consent as she had either passed out or was very drunk at the time of the sexual intercourse.

I am therefore satisfied that the Crown has proved beyond a reasonable doubt that the Complainant did not consent to the sexual intercourse that took place in the back of the car and that the accused knew that she did not or was not capable of consenting. [ 70 ] I come to that conclusion based in the following evidence; 1. The testimony of the Complainant which was credible and is supported to a large extent by the 2007 statement of the Accused. 2. The evidence of the Complainant’s aunt as to the Complainant’s condition when she picked her up in the early hours of September 12, 2005.

That is, her physical condition including her pants being inside out, she was drunk, not coherent and confused shortly after the event.

3. The evidence of Constable Sandmaier who was the first police officer to interview the Complainant only several hours after theincident. She testified that the Complainant had poor balance and was swaying. She had scattered thoughts and an inability to recall. Sheconcluded that she was moderately intoxicated. 4. The evidence of the forensic paediatrician Dr. Lewis who conducted a forensic examination on the Complainant. [71] I therefore find the Accused guilty on the

Section 271 charge.

Section 150.1(4) [72] Referring to the

Section 151 charge and the issue of the application of

Section 150.1(4). The relevant subsections state: Consent no defence 150.1

(1) Where an accused is charged with an offence under

section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is chargedwith an offence under

section 271, 272 or 273 in respect of a complainant under the age of fourteen years, it is not a defence that thecomplainant consented to the activity that forms the subject-matter of the charge. Mistake of age

(4) It is not a defence to a charge under

section 151 or 152, subsection 160(3) or 173(2), or

section 271, 272 or 273 that the accusedbelieved that the complainant was fourteen years of age or more at the time the offence is alleged to have been committed unless theaccused took all reasonable steps to ascertain the age of the complainant. [73] What constitutes reasonable steps will depend on the circumstances of the case. A useful

summary can be found in the NewBrunswick Court of Appeal of R v R.A.K. 1996 CarswellNB 67 where the Court says at para. 11: . . . what constitutes reasonable steps will of course depend on the circumstances of each case. In addition, it is my view that the agedifferential may be considered when determining whether the steps taken are reasonable. Almost without exception, the greater thedisparity in ages, the more inquiry will be required.

More will be expected of an older or more sophisticated accused than from a youthsuch as R.A.K. [74] And at para. 8 the Court adopts the following from R v Osborne (1992), (NL CA), 17 C.R. (4th) 350decision of the Appeal Division of the Newfoundland Supreme Court: . . . Parliament has decided that a person engaging another who is more than two years younger and under 14 in a sexual encounter isguilty of a crime, notwithstanding that the encounter may be consensual. The only defence is a belief that the younger is 14 years of ageor more.

Parliament requires more than an honest belief; it requires a belief resulting from the taking of "all reasonable steps to ascertainthe age of the complainant". Parliament made the act a crime and expects of citizens engaging in sexual activity with young people tomake a reasonable effort to ascertain the age of prospective partners. It is more than a casual requirement. There must be an earnestinquiry or some other compelling factor that obviates the need for an inquiry. An accused person can only discharge the requirement by

showing what steps he took and that these steps were all that could be reasonably required of him in the circumstances. It is not sufficient. for example, to state that further inquiries were not made because they would open the accused to ridicule, embarrassment or rejection. [ 75 ] The Accused testified that he thought the Complainant was young. His attitude to the subject of her age is illustrated in his 2007 statement (page 44) when he said. “And when I said to her once, you know, like “ I hear your are young, She goes no, no. Fuckin I was.

My birthday’s this”And then you know because and “ she had this little spiel and shit,” And I’m like, “All right. Fine. Whatever.” “Right?..... I still had my doubts right. But whatever, you know. Sure Things ..kept goin the way they were going”. [ 76 ] Despite the Accused having doubts the only steps he took to ascertain the Complainant’s age was to ask the Complainant and checked with other girls. [ 77 ] At trial he testified she told him she was 16. In his 2007 statement he said she told him she was 15.

The Complainant says he never asked her age and she never told him. [ 78 ] However the most significant evidence on this issue is the Accused’s evidence at trial that the Complainants mother told him sometime no later than the Spring of 2005 (prior to him moving to Calgary) to stay away from the Complainant and to leave her alone. The Complainant’s mother told him the Complainant was young; she was 13. [ 79 ] The Accused did not believe the mother was a reliable source because she was a drug addict. He believed the mother just wanted him to stay away from her daughter.

However the only step he took to check out this information he had received from the Complainant’s mother was to ask the Complainant. He says the Complainant told him that she had just had a birthday and was now14. [ 80 ] According to the Accused who was 26 at the time, although the Complainant had just confirmed she had previously been dishonest with him by telling him that she was 16, or 15 (when in fact she was only 13) he decided he could still believe her and not check with the mother or take other steps to confirm her age.

Summary: Reasonable steps [ 81 ] In

summary, I do not find the Accused’s evidence to be credible. It is contradictory and implausible. Taking into account the discrepancy in age between the Complainant (13) and the Accused (26), the warning he received from the Complainant’s mother and his own admitted suspicion that she was young, I find he did not take all reasonable steps to ascertain the age of the Complainant, prior to having sexual relations with her in September 2005. [ 82 ] I therefore find the Accused guilty on the

Section 151 charge. [ 83 ] For the reasons stated previously I find the Accused guilty on both charges: 1. Sexual assault contrary to

Section 271 of the Criminal Code ; and 2. Sexual touching contrary to

Section 151 of the Criminal Code .

Heard on the 11 th to 14 th day of October, 2011. Dated at the City of Edmonton, Alberta this 21 st day of October, 2011. J.J. Gill J.C.Q.B.A. Appearances: Mark Huyser-Wierenga for the Crown David Paull for the Accused