R v Evans, 2013 ABQB 419

Court of Queen ’ s Bench of Alberta Citation: R v Evans, 2013 ABQB 419 Date: 20131125 Docket: 110774825Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Aldin Evans 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner.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. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ Introduction [ 1 ] The Accused stands charged as follows: 1. That he, between the 1 st day of March, 2011 and the 21 st day of March, 2011, both dates inclusive, at or near Edmonton, Alberta, did unlawfully commit a sexual assault upon [DF], contrary to

section 271 of the Criminal Code of Canada. 2. That he, between the 1 st day of March, 2011 and the 21 st day of March, 2011, both dates inclusive, at or near Edmonton, Alberta, did for a sexual purpose, unlawfully touch directly or indirectly, with a part of the body or with an object, a part of the of the body of [DF], a person under the age of sixteen years, contrary to

section 151 of the Criminal Code of Canada.

3. That he, between the 1 st day of March, 2004 and the 31 st day of March, 2004, both dates inclusive, at or near Edmonton, Alberta, did unlawfully commit a sexual assault upon [AS], contrary to

section 271 of the Criminal Code of Canada. 4. That he, between the 1 st day of March, 2004 and the 31 st day of March, 2004, both dates inclusive, at or near Edmonton, Alberta, did for a sexual purpose, unlawfully touch directly or indirectly, with a part of the body or with an object, a part of the of the body of [AS], a person under the age of fourteen years, contrary to

section 151 of the Criminal Code of Canada. The Evidence Complainant 1’s evidence [ 2 ] AS (“Complainant 1”) testified with respect to the alleged March 2004 incident described in Counts 3 and 4. She gave evidence that some time during the month of March 2004, she was home on a professional development day from school, playing with the Accused’s granddaughter, when the Accused came down to the basement where they were playing with two rats that she had bought from the Dollar Store, and told the granddaughter she needed to go for her nap. The granddaughter was approximately 3 years of age at the time.

After the Accused took the granddaughter for her nap Complainant 1 alleges that the Accused picked her up like one would pick up a baby, facing towards his body, and carried her to her room putting her down on her bed. She further alleges that the Accused then started to kiss her, putting his hands under her shirt, and asked her if she loved him. The Complainant testified that she told the Accused that she did not love him, and then she alleges that he started rubbing her vagina over her pants, at which point the Complainant told the Accused to stop.

Finally the Accused did stop, and went back upstairs. [ 3 ] Complainant 1 also testified that she talked to another foster child who was living in the home at the time, AL, that evening, and asked AL “Did [the Accused] ever touch you?” The Complainant reported that AL had said “Yeah” (Trial Transcript [TT], 20/11- 12). [ 4 ] The Complainant left the foster home that evening under the care of her grandparents and never went back. Her social worker eventually put her in a different home, and she was interviewed about the alleged incident by police shortly thereafter in 2004.

No charges were laid at that time, however, against the Accused. Charges were not laid until October 2012 after this investigation is reopened, during Complainant 2’s matter. [ 5 ] On cross-examination, Complainant 1 acknowledged that she had a current, pending sexual assault claim against her biological father still outstanding.

And that she does have some special needs arising from being cognitively delayed, and suffers from some attention disorder. [ 6 ] When asked about a Statement of Claim which is filed in this Court on September 17, 2012, which names her as Plaintiff against the Accused/ Defendant in which she seeks $160,000 in damages arising out of the 2004 incident, the following conversation ensued between the Defence Counsel and Complainant 1 (TT 33/20-36): Q: Now, I understand that you’re the plaintiff in Court of Queen’s Bench Action 1203 13774; is that correct? A: Yes. Q: And you’re suing Mr.

Evans for about $160,000; is that also correct? A: No. Q: What is correct? A: I’m not suing Mr. Evans. Q: Well, I will just show you the statement of claim. Have you seen this? MR. HUYSER-WIERENGA: No. THE COURT: So are you suing Mr. Evans at all? A: I’m unaware of this.

Complainant 1 later indicates that she spoke with a lawyer at Fraser Milner Casgrain law firm about the matter approximately a year and a half ago, but she had no knowledge, and had not instructed, that such a claim be filed and pursued against the Accused. Complainant 2’s evidence [ 7 ] DF (“Complainant 2”) turned 17 years of age on September 23 rd , 2013.

At the time of the alleged sexual assault and sexual touching described in Counts 1 and 2, between March 1, 2011 and March 21, 2011, she was approximately 14 and a half years old. [ 8 ] Complainant 2 described how she had been placed in multiple foster and group homes since she was 10 years of age, and how she came to live in the Accused’s foster home in the spring of 2010. The Complainant testified that in March of 2011, the Accused was on his bed in his bedroom upstairs and she was standing in his doorway when she asked him for five dollars.

The Accused is alleged to have told her to come closer so he could hear her, at which point he got off of the bed, grabbed his wallet, handed her the five dollars and while still standing together, he is alleged to have pulled Complainant 2 towards him and began french kissing her.

The Accused is also alleged to have french kissed the Complainant on a few other occasions, as well as touched her butt and breasts. [ 9 ] In cross-examination, the following exchanges occurred between Complainant 2 and the Defence Counsel (TT 72/39-41; 73/1-38; 76/2-4): Q: Now, have you ever told the Child Welfare people and the police something that wasn’t true? A: I told a friend of mine something that wasn’t true. I was younger, and I told them that1 I was slapped by a former foster parent. Q: And who was that? A: Edith. Q: Who is Edith? A: Edith was my former foster mother before the Evans home.

Q: And when was that, Miss Folk? A: I’m not sure of the date. It was around the summertime -- sorry, about -- it’s actually springtime the year before I moved into the Evans home. Q: I wonder if you could take a look at Exhibit Number A [i.e. Trial Exhibit 2] from the preliminary hearing? ... Q: MR. NEWTON: ... Now, the clerk is showing you a piece of paper. It looks like two sides of a notebook. Do you see that? A: Yes. Q: And whose writing is that? A: Me. Mine. Q: And to whom were you writing this memo? A: I’m pretty sure it was my social worker.

Q: So if I might just read it, and you can tell me if it’s right or -- if I’m right or I’m wrong. A: All right. Q: When you don’t live in the foster home you have no idea what goes on. What I’m saying is true. I know what you are talking about. He is not abusing me. I am not afraid. Q: So when you’re referring to he, I take it that is [the Accused]; is that correct? A: Yes. ... Q: Okay. Anyway, you authored this [handwritten note], and when did you write it out?

A: I’m guessing I had written it shortly after Joyce and Evans had -- Joyce and Aldin had found out about what was going on in the home. [ 10 ] I have attached as Appendix “A” to these Reasons the contents of Exhibit 2 from the trial which is the handwritten note

referred to by Complainant 2, in the conversation excerpted above, and provided to her social worker around the time of her departure from the Accused’s foster home. Complainant 2 was asked about Exhibit 2 at trial, but it appears that the investigating detective in this matter, Det. DeChamplain, never spoke with Complainant 2 about the note.

When Complainant 2 was further examined about the statement “he is not abusing me, I am not afraid” at trial she indicated that her use of the term “abuse” referred to physical abuse, similar to her previous description of being “slapped by Edith”, which she acknowledged in the note was a lie. Complainant 2 however maintained that the term “abuse”did not include sexual abuse, sexual touching or sexual assault, and the note goes on to indicate that “what I am saying is true,” an apparent reference to the allegations that she was making against the Accused. Det. S.

Dechamplain’s evidence [ 11 ] Detective Shannon Dechamplain was the lead investigator in regard to the complaints. She states inter alia , that (TT 93/40-41; 94/1-14): A: ... [D]uring this investigation actually, on the evening of March the 21st, it had been brought to my attention that the foster father, Mr. Evans, had been a suspect in a sexual assault allegation in 2004. All I was told at that time was that that investigation file was suspended and no charges were laid.

I had no other details about that, so following [Complainant 2’s] interview on March the 24th, 2011, I requested a copy of the 2004 investigation. So during the course of [Complainant 2’s] investigation, I received the documentation regarding the 2004 investigation and reviewed all of that. I learned that Detective Debbie Doyle, who at that time was working in child protection section, had become involved and was the primary investigator. And so I reviewed all the documents in there, and then on May the 11th I reviewed the two interviews that Detective Doyle had conducted with the complainant in 2004. Q: Okay.

So that’s with [Complainant 1] -- A: Yes. The Accused’s evidence [ 12 ] The Accused took the stand in his own defence and denied ever kissing or touching both Complainants 1 and 2 in a sexual or inappropriate manner, as alleged in the charges. [ 13 ] The Accused testified as to his present health issues at age 78. He has a heart pace maker, high blood pressure and certainly could not lift anyone, let alone the first complainant as alleged.

The Accused acknowledges that his present health problems did not exist in March of 2004, some 7 years prior to the charge and 9 years to the within trial. [ 14 ] The Accused also testified that he comes from Jamaica originally, and that it is not part of his culture to hug, let alone kiss family members. In fact the Accused indicates that he did not even hug his wife through their long term marriage. Similarly the Accused testified that he did not ever permit anyone to sit on his lap, not even his granddaughter. AL’s evidence [ 15 ] The Defence called one AL as witness.

AL had earlier been specifically mentioned by Complainant 1 during her direct examination by Crown’s Counsel. AL testified that (TT 117/9-37): Q: And I understand that you lived with Mr. Evans and his wife a few years ago. A: I did, yeah. Q: And how long did you live with them? A: About eight years. Q: Were you ever there when [Complainant 1] was present and living in the house? A: I did live with her, yes. Q: How long? A: For about a year. Q: Now, did anything ever happen to you when you were at the Evans’s house of a sexual nature? A: No, never. Q: Of a sexual nature, particularly with Mr. Evans? A: No.

Q: Did you ever discuss matters of a sexual nature with [Complainant 1]?

A: No, never. Q: Specifically, were you ever asked by [Complainant 1] if you were sexually assaulted by Mr. Evans? A: No, I was not. Q: And were you ever assaulted by that gentleman? A: No. [16] The above reproduced evidence of AL contradicts in a direct manner the evidence of Complainant 1 that she asked ALwhether the Accused ever touch her and that AL had replied positively (TT 20/11-12). Det. D.

Doyle’s evidence [17] The Defence also called Detective Debbie Doyle who, as indicated earlier by the evidence of Detective Dechamplain, was theprimary investigator in Complainant 1’s allegations in 2004. [18] Detective Doyle testifies that she became a detective in February of 2004 and was newly promoted into the child protectionsection/unit when she was assigned to conduct a sexual assault investigation into Complainant 1’s matter in 2004. [19] In direct examination by Defence Counsel, Detective Doyle states (TT 156/10-17): Q: Did you conduct any interviews or anything like that? A: Yes, sir, I did.

Q: And as a result of the work that you did on the trial, were any charges laid? A: I didn’t lay any charges, no, sir. Q: To your knowledge no charges were laid, is that a fair statement? A: I know that when I conducted the investigation, I didn’t lay any charges. [20] On cross-examination by the Crown, Detective Doyle indicates that although her interview with Complainant 1 in 2004 wasmonitored by a Constable assigned to the child protection section, the Constable “was doing other things within the unit [and] as far as[Det.

Doyle] know[s], [the Constable] had absolutely no training in regards to interviewing children or anything involving those types ofinvestigations” (TT 158/1-10). Analysis [21] In R v W(D), (SCC), [1991] 1 SCR 742 at para 11, 63 CCC (3d) 397 (WL), the Supreme Court indicated thatevidence is to be evaluated in the following order: 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [22] With respect to the first part of the test in WD, I am unable to believe the Accused’s evidence which, in my view, isessentially a blanket denial, without more.

Given the reality that an Accused person will naturally want to protect himself or herself bydenying an allegation made against him/her, the nature of the evidence of the Accused in this case, i.e. the bare denial by the Accusedperson, does not make his evidence believable in itself. Accordingly at the first step analysis, I conclude that on its own merits, I do notbelieve Mr. Evan’s testimony. [23] At the second stage of the WD test, I am required to consider whether I am left in reasonable doubt by the evidence of theAccused person, if I do not believe his testimony.

As indicated at the first step, I do not believe the bare denial of the Accused in thismatter and I am not left in reasonable doubt based on that evidence in itself. In addition to the bare denial of the allegations by theAccused, he testifies as to his present health issues at age 78, the heart pace maker he now uses, and that all of these coupled with hishigh blood pressure certainly make it unrealistic that he would be able to lift anyone, let alone lift Complainant 1, as alleged.

Thedifficulty with this evidence is that the Complainant 1’s allegation stems from 2004, some 7 years previous to the charge, and theAccused acknowledges that his present health problems did not exist in March of 2004. Consequently, this evidence does not leave me ina reasonable doubt of the Accused’s guilt.

[ 24 ] With regard to the evidence of the Accused that it is not part of the culture of his original country, Jamaica, to hug or kiss family members, including his wife and that he had never permitted even his granddaughter to sit on his lap, I have concluded that these testimonies, in themselves, do not leave me in a reasonable doubt of the Accused’s guilt based on the fact that no actual evidence was called with respect to cultural differences between Jamaica and Canada.

Neither is it reasonable nor logical to infer or conclude in absolute terms that the fact that the Accused never hugged his family members means that he would never hug anyone else in his household.

The Accused’s evidence in relation to the cultural differences between Jamaica and Canada does not leave me in a reasonable doubt of the Accused’s guilt. [ 25 ] At the third step of WD , even if I am not left in doubt by the evidence of the Accused person, it is necessary for me to ask whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. I conduct this analysis by assessing whether or not the Crown has proven the essential elements of the offence in the Indictment beyond a reasonable doubt.

If the allegations made by the Complainants are accepted by the Court as proven beyond reasonable doubts, they would constitute the offences of sexual assault and sexual touching, as alleged by the Crown. The verdict is not based on a choice between the Accused’s and the Crown’s evidence but whether on the evidence as a whole, I am left with a reasonable doubt as to the Accused’s guilt. [ 26 ] I note that there are no issues with respect to the material dates and times alleged in the Indictment, nor is the identity of the Accused an issue in this case.

Reasonable Doubt and Complainant 1 [ 27 ] Complainant 1’s denial that she does not know anything about the 2012 Statement of Claim filed in this Court which names her as Plaintiff in which she seeks $160,000 in damages against the Accused person arising out of the alleged sexual assault which occurred in 2004 goes to the root of her credibility and the testimony which she gave before this court at trial.

In my view, that denial of any knowledge of this lawsuit is simply not credible given that no major, national law firm, such as the one that filed this Statement of Claim on her behalf on September 17, 2012, would ever proceed without instructions, and would never have done so without Complainant 1’s knowledge.

The Crown led no evidence to clarify the circumstances around the giving of instruction (or lack of it) to the law firm that filed the 2012 Statement of Claim. [ 28 ] While Complainant 1 is certainly entitled to pursue her civil claim for damages for the alleged sexual assault against her by the Accused, her denial of any knowledge of this claim, being not credible, exposes a possible motive on her part to fabricate or exaggerate her present allegations against the Accused.

As such, Complainant 1’s lack of credibility, based on her evidence in this regard, creates a reasonable doubt in my mind as to the Accused’s guilt with respect to Counts 3 and 4. [ 29 ] Furthermore, Complainant 1 testifies that she spoke to another foster child who was living in the home at the time, AL, on the evening of the alleged sexual assault about whether AL had ever been touched inappropriately by the Accused. Complainant 1 reports that AL had said “Yeah.” However, AL was called to testify by the Defence and she denied ever being asked that question, as excerpted in her evidence above.

AL also testified that the Accused never touched her in any sexually inappropriate manner during her 8 year stay at the Accused’s residence. [ 30 ] While this is a collateral matter, it also serves to call into question the credibility of Complainant 1 generally, and further raises a reasonable doubt in my mind as to the guilt of the Accused with respect to Counts 3 and 4. Reasonable Doubt and Complainant 2 [ 31 ] I have concerns with Complainant 2’s statements in her handwritten note marked as Exhibit 2 (and attached as Appendix “A” to these Reasons).

She confirms that she is the author of the note, but apparently never spoke with Det. DeChamplain, the investigating detective in this matter, about the note.

Nevertheless, when examined at trial about her statement in the handwritten note that “[the Accused person] is not abusing me, I am not afraid,” Complainant 2 indicates that her use of the term “abuse” referred to physical abuse, similar to her previous description of being “slapped by Edith,” which she acknowledged in the note was a lie. [ 32 ] In my view, that handwritten note is, at best, ambiguous, and it represents an important part of the res gestae emanating from Complainant 2, as it was written by her at the very time the allegations were being made against the Accused in 2011.

The equivocal nature of the handwritten note of Complainant 2, in the context of her admission that she lied about the “slapping” incident or complaint against her former foster parent, triggers reasonable doubts about Complainant 2’s credibility.

In the circumstance, I have reasonable doubt as to the Accused’s guilt in this matter as it relates to Complainant 2’s allegations with respect to Counts 1 and 2. [ 33 ] Based on the evidence as a whole that I have accepted in this matter, I find that the Crown has failed to prove the essential elements of the offences alleged in the Indictment beyond a reasonable doubt and I am not convinced beyond reasonable doubt that the Accused is guilty of the alleged offences.

Conclusion [ 34 ] On all of the evidence before me on which I do rely, I conclude that there is a reasonable doubt with respect to the allegations of sexual assault and sexual touching made against the Accused person in the Indictment. The circumstances, while clearly suspicious, given the similar fact evidence from the Crown, still leave me with a reasonable doubt as to the Accused’s guilt regarding all of the counts charged in the Indictment.

[ 35 ] Therefore, I acquit the Accused, Mr. Aldin Evans, on all the counts in the Indictment. Heard on the 15 th to 17 th days of April, 2013; and the 7 th day of August 2013. Supplementary Submissions received the 10 th day of June, the 8 th and 22 nd days of November, 2013. Dated at the City of Edmonton, Alberta this 25 th day of November, 2013. Donald Lee J.C.Q.B.A. Appearances: Mark Huyser-Weirenga for the Crown Peter Newton, Q.C. for the Accused