R. v. M.E.O., 2012 ABQB 688

Court of Queen ’ s Bench of Alberta Citation: R. v. M.E.O., 2012 ABQB 688 Date: 20121107 Docket: 101175453Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - M.E.O. Accused Restriction on Publication: Identification Ban – See the Criminal Code,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ 1. Introduction [ 1 ] On November 2, 2012, I found M.E.O., who, in these reasons, I will refer to as “the Accused”, not guilty of the sexual

assault of T.E., contrary to Criminal Code , R.S.C. 1985, c. C-46, s. 271. At that time, I advised the Defence and Crown that formal reasons for judgment in regards to this matter would be filed no later than November 7, 2012. What follows are the formal reasons for judgment. [ 2 ] Pursuant to Criminal Code , s. 486.4, there is a publication ban on the name of the Complainant and any information that might reveal T.E.’s identity. [ 3 ] The Accused is charged with the following offence: That he, on or about the 3rd day of April, 2010, at or near Edmonton, Alberta, did unlawfully commit a sexual assault upon T.E., contrary to

section 271 of the Criminal Code of Canada. [ 4 ] In these reasons, I will hereinafter refer to T.E. as “the Complainant”. [ 5 ] This Court heard this matter on October 29, 2012, without a jury. As a preliminary matter, the Crown formally conceded on the record without the necessity of proof that the Accused was not in the city of Edmonton on the weekend of April the 3, 2010. That is the day when the alleged offence was committed. 2. Facts [ 6 ] There is no agreement on the facts in this case. At trial, the Crown called one witness, the Complainant. The Accused called no witnesses and testified on his own behalf.

A. Complainant ’s Version [ 7 ] The Complainant was living in Lethbridge at the time of the alleged offence. However, on the weekend of April 3, 2010, he was visiting his mother in Edmonton. At approximately 8:00 to 8:30 p.m. the Complainant and his friend S. went to the Edmonton apartment complex where the Accused lived. They smoked marijuana with the Accused. S. had to go to school the next morning so he and the Complainant left after 1-1.5 hours. [ 8 ] During this visit the Complainant did not have any alcohol to drink.

Sometime after leaving the Accused’s apartment, the Complainant received a text message from the Accused that said the Accused thought that the Complainant would have stayed a little bit longer, so that they could have a couple of beers or whatnot. The Complainant replied to the text message that although S. had to get home, maybe he could come back. He could ask S. to drive him there. That is what then happened. [ 9 ] S. dropped the Complainant off at about 10 p.m., but did not stay.

The Complainant and the Accused began to smoke marijuana, drink beer, listened to music, and played a couple drinking games called Triangles. The Complainant consumed six beers and three joints. He felt much more drowsy than normal, and testified that though he was an experienced marijuana consumer (he had smoked for four years), this day he felt different side effects. He says he did not feel like himself and was nauseous. [ 10 ] He asked the Accused if he could lay down, who replied that was fine. The Accused then led the Complainant to his bedroom.

The Complainant asked the Accused to wake him up in two hours so that he could go home. The Complainant immediately passed out without undressing.

[ 11 ] When he awoke his pants and underwear were pulled down and the Accused was performing oral sex on him. He alleges the Accused touched and sucked on his penis. The Complainant did not want the Accused to perform oral sex on him. He had never agreed in the past for the Accused to perform oral sex on him. He had never consented to having the Accused perform oral sex on him. [ 12 ] The Complainant immediately pulled up his pants, got out of the bed, and went downstairs to the kitchen.

The Accused followed and said over and over that he was sorry and that he never meant to do this. [ 13 ] The Complainant replied that he did not want to hear anything of it, and demanded to know if the Accused had done anything else. The Accused said no, and said he was not used to doing this, this was not him. The Complainant said he did not care and needed money to get home. [ 14 ] The Complainant acted in “a passive aggressive manner” because he had no job and no money to get home. All he wanted was some money to get home.

The Accused had previously said that he could pay for a taxi ride as S. was not going to be able to pick up the Complainant. The Complainant was given $50-60, and took a taxi home. [ 15 ] The Complainant testified that he did not immediately report the incident to the police because he did not know how to cope with it. [ 16 ] When the Complainant returned to Lethbridge he did not want any of his friends to know what had happened, because some of his friends had the Accused on Facebook.

The Complainant therefore concocted an elaborate story about how the Accused had hooked up with a cross-dresser while drinking and smoking marijuana at the Accused’s apartment. This story was, allegedly, so that the Complainant’s friends would know how weird the Accused was and would not talk to him. The intended result was that no one could then discredit the Complainant. The Complainant told this story to all of his friends who had the Accused on Facebook. [ 17 ] The Complainant believes that on August 26, 2010, the Accused contacted the Complainant by Facebook and asked him what he was doing and everything.

The Complainant replied that the Accused could either turn himself in to the police and admit what he had done, or the Accused could fight the Complainant. The Accused replied that he would meet the Complainant at Millwoods or elsewhere. They would fight. [ 18 ] The Complainant then deleted the Accused from his Facebook account, called his friend S., but when he was about to go into Millwoods he had a change of heart and did not want to bring S. into his mess. The Accused then waited until his mother got home and after speaking with her about the incident, he contacted the police. B.

Accused ’s Version [ 19 ] The Accused testified that he first met the Complainant when he was living in Lethbridge in the winter of 2006 and that the Complainant was friends with a good friend’s younger brother. At this time, the Accused rented a basement suite from the family of his friend J.S. The Complainant had, on about a half dozen occasions, come to this rented suite to hang out with the Accused and his friend J.S. [ 20 ] The Accused smoked marijuana with J.S. and J.S.’s brother.

While the Accused did not encourage the Complainant or J.S.’s brother to smoke marijuana, the Accused allowed the Complainant and J.S.’s brother to smoke marijuana in the downstairs suite. [ 21 ] On December 12, 2009, the Accused moved to Edmonton and rented an apartment with his twin brother. He and the Complainant chatted occasionally on Facebook to see how the Complainant was doing. The Complainant visited the Accused’s Edmonton residence no more than two occasions.

At no time were the two alone. [ 22 ] The last time that the Accused saw the Complainant was midsummer, in July of 2010, when the Complainant visited with a group of friends, including S.. The other visit was by the Complainant and S., and took place a couple months earlier, possibly towards

the end of school. [ 23 ] The Accused acknowledged that sometime after this last visit by the Complainant in Edmonton, the Accused received a message from the Complainant on Facebook stating that the Complainant did not want further contact with the Accused. The Accused further acknowledged that sometime in 2010 he received threatening messages from the Complainant on Facebook: the Complainant wished to beat up or fight with the Accused.

The Accused had no explanation for those messages. [ 24 ] On September 29, 2010, the Accused received a phone call from the Millwoods police station, saying that there was a complaint about him and that the police wanted him to come down and take care of it. The Accused immediately went to the police station to see what was going on and as a result he was charged with the subject offence. While at the police station, the police advised the Accused as to the charge he now faces. [ 25 ] The date given by the police for the alleged offence was April 3, 2010.

The Accused checked on where he was on that day and determined that he was in Lethbridge on that date. One of his best friends, Z.L., lived in Lethbridge and celebrated his birth date in April of that year. The Accused had taken a Greyhound bus down to Lethbridge on March 31 st , and had returned on April 5, 2010. The time and path of this trip was demonstrated by a Greyhound bus ticket, his telephone use history, and his bank statements. In addition, the Accused had three individually sworn affidavits from certain of his friends in Lethbridge.

With this documentation, the Accused confirmed he was in Lethbridge and not Edmonton between March 31 and April 5, 2010. This evidence was provided to the Crown, and its accuracy has been admitted. [ 26 ] The Accused denies that he committed the offence for which he is now charged. When the Complainant did come to his residence, either in Edmonton or Lethbridge, and drank or did drugs, he did so but not to the point of intoxication. The Complainant never passed out at his residence in Edmonton. C. Arguments on the Evidence [ 27 ] These accounts are obviously in conflict.

The Crown and Defence Counsel had comments on that. [ 28 ] In closing argument, the Crown argued that prior to the April 3, 2010 alleged sexual assault, these two individuals had been friends. Suddenly, their relationship soured, to the point that the Complainant threatened to inflict physical harm on the Accused. The Crown suggests that such a change must relate to some dramatic development. In this respect, the Crown stated: There was no other event that caused that relationship to be bad. There wasn’t a death. There wasn’t an argument.

All of a sudden, the reputation was frosty, and there was no motive for that whatsoever. [ 29 ] The Crown also argued that the Complainant would not lie about this offence, being sexually assaulted by another man. This affected his dignity and was a cause for embarrassment. That is why the Complainant fabricated the cross-dresser story. What motive could he have to now come forward? [ 30 ] The Defence suggested other motives, beyond the alleged sexual assault. First, the Complainant was caught making threats on Facebook by his mother.

The Complainant had recently broken up with his girlfriend and was ‘self-medicating’ via excessive marijuana use. Here, he had attempted to construct an innocent and reasonable explanation for his actions. In this respect, Defence Counsel stated: ... once he started with a story, he’s caught, mother catches him, first thing that comes into his head in four minutes or less is, I had -- I’m threatening to kill this guy because he sexually assaulted me and now he’s stuck with it.

And his mother, rightly so, is upset because she’s hearing this horrible thing that’s happened to her son, she wants to report it to the police, and T.E. then has a story that he makes up and he sticks with.

3. The Burden of Proof [31] The Crown is required to prove beyond a reasonable doubt that the Accused is guilty of the offence with which he has beencharged. An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of the offencebeyond a reasonable doubt: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733, and R. v. Svekla, 2009ABQB 193 at paras. 2-10, affirmed 2010 ABCA 390; 493 A.R. 346. Absolute certainty is not necessary to convict, but something morethan probable guilt is required: R. v. Starr, 2000 SCC 40 at para. 242, [2000] 2 S.C.R. 144. 4.

Credibility and Reliability [32] In arriving at the decision on the issue of the guilt or innocence of the Accused, the Court must consider the evidence as awhole and must be particularly alive to the principles of law of presumption of innocence and reasonable doubt. [33] In the case at bar, the evidence of the Accused and the Complainant are in conflict. The credibility and reliability of theAccused and the Complainant is therefore crucial.

An assessment of credibility must consider whether there were any impediments to areliable perception and recollection of events. [34] In the Supreme Court of Canada decision of R. v.White, (1947), (SCC), 89 C.C.C. 148 (S.C.C.), Justice Esteystated: The issue of credibility is one of fact and cannot be determined by following a set of rules ...

Anglin J. (later Chief Justice) in speaking of credibility stated: (sic.) "... by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities ofknowledge and powers of observation, judgment and memory -- in a word, the trustworthiness of their testimony, which may havedepended very largely on their demeanour in the witness box and their manner in giving evidence." ... there has never been an effort made to indicate all the possible factors that might enter into the determination.

It is a matter in whichso many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence ofthe witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determinewhether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive. Allthese questions and others may be answered from the observation of the witness' general conduct and demeanour in determining thequestion of credibility. [35] In R. v.

G.(M.) (1994), (ON CA), 73 O.A.C. 356, 93 C.C.C. (3d) 347 (Ont. C.A.), Justice Galliganobserved: Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what thewitness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. ...

But wherethe inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstratea carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon thetestimony of a witness who has demonstrated carelessness with the truth.

D. R. v. W.(D.) Analysis [36] The Accused testified at trial. This step is not required for a defendant, but the Accused in this instance elected to responddirectly to the charge and evidence against him. [37] A specific procedure is followed when an accused person testifies. The Supreme Court of Canada in the case of R. v. W.(D.);R. v. D.W., (SCC), [1991] 1 S.C.R. 742, 122 N.R. 277 [“W.(D).”] has directed me, as a trial judge, to be very cautiousand to not simply convict the Accused because I do not believe him. As a result judges follow a three-part test.

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 evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [38] Further, if after a careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit theAccused. [39] I may only convict the Accused if I am satisfied that the Crown has proved each of the elements of the offence chargedbeyond a reasonable doubt.

If after considering all the evidence I am not sure of the Accused’s guilt and have a reasonable doubt of suchguilt, I must find him not guilty. [40] The analysis as directed by the Supreme Court in W.(D.) is essential in order to ensure that the burden to prove an accused’sguilt beyond a reasonable doubt remains with the Crown, and is not inappropriately shifted to the accused. In this respect, in R. v.

J.H.S.,2008 SCC 30 at para. 13, [2008] 2 S.C.R. 152, Justice Binnie had this to say: W.(D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of theoffence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance. [41] In conducting the W.(D.) analysis, this Court is further assisted by the case of R. v. Hull, [2006] O.J.

No. 3177 (QL) at para.5, , where the court held: W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, theyprohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence ofCrown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused'stestimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of thewitnesses.

On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome ofthe assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused. E. Credibility and Reliability [42] A W.(D). analysis requires that a judge evaluate the credibility and reliability of the accused. In R. v. Norman (1993), (ON CA), 87 C.C.C. (3d) 153, 26 C.R. (4th) 256 (Ont. C.A.), Finlayson J.A. for the court said at p. 173:

I do not think that an assessment of credibility based on demeanour alone is good enough in a case where there are so many significantinconsistencies. The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether thisevidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what isparamount. [43] Similarly, in R. v. Morrissey, (1995), (ON CA), 97 C.C.C. (3d) 193, 38 C.R. (4th) 4 (Ont. C.A.), DohertyJ.A. wrote: When one is concerned with a witness's veracity, one speaks of the witness's credibility.

When one is concerned with the accuracy of awitness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannotgive reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable. F. Credibility and Reliability of the Accused [44] The Accused is a credible and reliable witness. In both Examination in Chief and Cross Examination, the Accused gave histestimony in a clear, direct, and un-convoluted manner.

His explanation of his interrelationship and interactions with the Complainantwas consistent. He frankly acknowledged his drug use. I believe he told the truth when he said that he did not engage in the allegedsexual assault, or that he had any sexual interaction with the Complainant. [45] His account was plausible. I found the Accused extremely credible and accordingly, I found his evidence extremely reliable. G. The First and Second Steps of the W.(D.) Analysis [46] The first step of the W.(D.) analysis is my assessment of the evidence of the Accused.

If I believe the Accused, I must acquit.As stated previously, I found the Accused in his testimony to be clear and unequivocal as to his interactions with the Complainant, andthat he has had no sexual involvement of any kind with this person. [47] The Accused was unshaken during Cross Examination by the Crown. The Accused confirmed that he at no time committedthe alleged sexual assault on the Complainant. I believe the evidence of the Accused in this regard.

Normally, that would end myanalysis, however I will continue through the W.(D.) test. [48] The second step is unnecessary, since it requires that I acquit if I do not believe the Accused, but his evidence raises areasonable doubt. Following on my prior comments, that evidence certainly meets that threshold. H. The Final Step of the W.(D.) Analysis [49] The last step of the W.(D.) analysis is to evaluate the evidence as a whole. Since I have already commented on the testimonyof the Accused, I now turn to the testimony of the Complainant.

Obviously, that conflicts with that of the Accused. [50] This leads me to evaluate the credibility and reliability of the Complainant. I have serious concerns not only with thecredibility of the Complainant but with respect to the reliability of his evidence.

[ 51 ] On credibility, this Court could not specifically ascertain from his testimony both during Examination in Chief and during Cross Examination whether or not he was being untruthful at this point. However, his own evidence indicates he has previously been willing to advance untruths in relation to his interaction with the Accused. He fabricated the story to tell his friends about the cross-dresser. [ 52 ] At trial, the Complainant testified he advanced that lie to protect himself in the eyes of his friends. He testified he lied to his girlfriend as well as his parents on the scope of his marijuana use.

With that admitted history, I must ask myself to what extent and to what lengths would the Complainant go to protect himself? [ 53 ] At least some aspects of the Complainant’s testimony is unreliable. During Examination in Chief of the Complainant, the Complainant consistently testified that the date of the alleged offence was April 3, 2010. We know from the concession made by the Crown at the outset of these proceedings that the Accused was in Lethbridge at this time. At the very least, the Complainant got the date of the alleged sexual assault wrong. [ 54 ] Further his evidence proved inconsistent.

On Cross Examination by Defence Counsel the Complainant denied that his mother caught him threatening somebody on Facebook. He said that he had announced to his mother that he was planning to meet and fight someone, and to beat them up. However, at the Preliminary Inquiry, the Complainant said his mother had caught him making threats to someone via Facebook. Then a yet further version emerged. Now the Complainant said his mother was not there at this time.

She was at work when that happened, and when she came home he was basically threatening to go over to Millwoods with his friend S. to beat up the Accused. [ 55 ] The Complainant then continued to say: So basically I guess she did catch me threatening to go and beat someone up, but she didn't catch me threatening someone over Facebook.

She doesn't look at my Facebook. [ 56 ] I think there is a very significant difference between announcing one’s intention (to their mother) to beat someone up, and having one’s mother independently discover those threats. [ 57 ] Another inconsistency was the kind and scale of contact between the Accused and the Complainant. During Cross Examination the Complainant explained that before April 3, 2010 the Complainant (and others) had visited the Accused’s residence four or five times.

During Cross Examination he said he had been there alone two to three times before the alleged incident. [ 58 ] Defence Counsel reminded the Complainant that during the Preliminary Inquiry the Complainant said the first time he ever visited the Accused’s residence was on April 3, 2010, the (incorrect) date of the alleged offence. The Complainant reviewed his witness report, indicated his memory was refreshed, and said that he had been to the Accused’s Edmonton residence a few times before April 3, 2010.

This inconsistency on a material fact brings into question both the reliability and credibility of the Complainant’s in-court testimony. [ 59 ] Defence Counsel also noted that the Complainant’s written statement referred to a pre-April 3, 2010, incident where the Accused invited the Complainant to his Edmonton apartment to watch pornography. During this visit the Accused allegedly masturbated himself under his clothing. When asked during Cross Examination on when this incident occurred, the Complainant replied: No, I don’t know when that happened. I never wrote it down in my calendar or anything like that.

I don’t really know. I know it was before the spring break though. Probably a month or two.

[ 60 ] When asked who else (if anyone) was present during the pornography viewing the Complainant stated: I’m confused. I’m really confused right now, because when I went with all my other buddies it was the night when he decided to watch porn I believe. ... Because there was only S. with me. It was only S. on that night. [ 61 ] Defence Counsel noted that the Preliminary Inquiry transcript indicates the Complainant had then testified that he, S., and a couple other friends were there.

The Complainant then indicated: Yes, that helps me, but I believe it wasn’t that night I must have been confused then because it wasn’t that night. S. was the only one with me that night....Like I said, I went with my friends to his house four or five times, I didn’t really keep tabs who was coming and who was going. All I know is on April 3rd the friend, the only friend who was in that place, other than myself at that point in time, was S.. [ 62 ] That led to this exchange: Q. Well, [Mr. T.E.], I just want to be clear. Earlier when I was asking you about the night with the porn you said it was you and S..

Now you are saying that the night that the porn was with a bunch of other buddies who were there because now you are confused about which night it was? A. Yeah. I really don't know what night it was. I really don't know what night that was. All I know is the night that we are talking about. Q. Okay. A. And I don't, I must have been confused about who came over because that's not right at all because I know for a fact no one was there other than me and S. when we smoked pot that night. Q. Well, I just want to go backwards a bit because I want to be clear about this.

When you earlier said it was just you and the Accused when you were watching porn, what I read to you from the statement you are now saying he had a bunch of friends over that time? A. Yes. Q. Yes? A. Yes. Q. So it wasn't just you and the Accused when you were watching porn? A. It was me and M.E.O., just me and M.E.O. when we watched porn that's what I say in the incident report, but before that some of my friends came over. I don't know whether it was that night when we watched porn or if it was one of the other three to four times when I was there.

I state in my incident report that I went there four or five times with my friends. I don't know who came with me each time. [ 63 ] The Complainant’s unusual response upon waking up in the Accused’s bedroom was also described in different ways. The Complainant says he told the investigating police officer that the Complainant was very uncertain of what had happened:

Yeah, I remember telling him that it could have been a date rape, I'm not sure. I felt dazed. I didn't immediately, like I said, I immediately got up, once I felt that I could and in a passive-aggressive way, it is not like I punched him or yelled at him or anything like that because I needed money to get back home, but also it was because I didn't know if it was a dream or what it was. So it could have been from drugs too, yes. [ 64 ] At trial, the Complainant rejected that account and said he was certain. He had not dreamed of the alleged sexual interaction.

But earlier he had testified that: I did roll over and pull up my pants because I didn't know what to think when I saw somebody sucking my penis, especially a dude, especially when I'm sleeping too. I didn't know if I got date raped. I didn't know if I was dreaming. I didn't know if I was -- I didn't know anything at that point. I didn't know what to take out of it. [ 65 ] The Complainant’s own account of his state on the night of the alleged offence also does not support his being a credible witness.

He reports consuming a large amount of beer (he was unsure of just how much), and enough marijuana that: ... me and M. where we were getting flat out blitzed out of our minds, [ 66 ] As for the Crown’s suggested motive as to why the relationship between the Complainant and the Accused changed after the alleged incident, that is pure speculation. Frankly it does not take much experience on the Bench to learn that hostility and violence can emerge from misconduct or insult that is far less than what the Complainant here alleges. [ 67 ] Further, corroborating evidence was not advanced.

Defence Counsel observed that S. did not testify, though he was substantially involved in the alleged events on the critical night. There was no evidence from the Complainant’s mother.

Nor did the Crown call evidence from the Complainant’s ex-girlfriend, his friends, or even more tangible evidence, provided it was available, of the online interactions between the Accused and the Complainant. [ 68 ] Beyond the Complainant’s inconsistencies in his account, the unreliable date, the admitted excessive use of intoxicants, I simply have grave concerns that the Complainant was simply attempting to establish and maintain a fabricated account.

His story fluctuated between various forms, the Complainant appeared uncertain of what detail to adopt, and when confronted by an innocent explanation for what he remembered, that it was just a dream - an innocent explanation that he had previously said was possible - the Complainant simply restated he knew what had happened, and was certain of the Accused’s guilt. [ 69 ] The last step in the W.(D.) analysis would require that I consider whether the evidence of the Complainant proves the alleged misconduct, in light of the testimony of the Accused.

I can simply observe that even viewed alone, on its strongest face, the Complainant’s testimony does not and could not convince me that the Accused had committed the alleged offence, beyond a reasonable doubt. [ 70 ] Therefore if I had been required to apply the third step of the W.(D.) analysis (which I am not), I would still acquit the Accused. The Crown has not met its onus of proving beyond a reasonable doubt that the offence charged has been committed. 5. Conclusion [ 71 ] Mr. M.E.O, this Court finds you not guilty of the charge as listed in the indictment, Criminal Code , s. 271.

Heard on the 30 th day of October, 2012. Dated at the City of Edmonton, Alberta this 7 th day of November, 2012. Don J. Manderscheid J.C.Q.B.A. Appearances: Neil S. Wiberg for the Crown Laurie I. Wood for the Accused