R v FY, 2013 ABQB 694

Court of Queen ’ s Bench of Alberta Citation: R v FY, 2013 ABQB 694 Date: 20131127 Docket: 091028092Q1 Registry: Edmonton Between: Her Majesty the Queen - and - FY 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner.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. Editorial Notice: On behalf of the Government of Alberta i dentifying information has been removed from this unofficial electronic version of the judgment. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Thomas W. Wakeling _________________________________________ ______________ I.

Introduction [ 1 ] In an indictment dated November 1, 2011 FY is charged with having sexually assaulted EP, his first cousin, on April 21,

2001 at the […] First Nation in contravention of s. 271 of the Criminal Code , R.S.C., 1985, c. C-46. II. Questions Presented [ 2 ] Has the Crown proved beyond a reasonable doubt that Mr. FY, the accused, and Ms. EP, the complainant, had sexual intercourse on April 21, 2001? [ 3 ] If so, has the Crown proved beyond a reasonable doubt that the complainant did not consent to this sexual act? III. Brief Answers [ 4 ] The Court is satisfied beyond a reasonable doubt that Mr. FY had sexual intercourse with Ms.

EP on April 21, 2001. [ 5 ] But the Crown has not proved beyond a reasonable doubt that the accused had sex with the complainant without the complainant’s consent. [ 6 ] There are three principal reasons for this factual determination. [ 7 ] First, when the accused finished having sex with the complainant, she said to KL, a person who was sitting on a chair in the complainant’s bedroom while the accused and Ms. EP were having sex, “Do you want a chance too?”. He did. Ms. EP communication with Mr. KL can reasonably be characterized as an invitation from Ms. EP to Mr. KL to have sex with her.

That she may have consented to having sex with Mr. KL minutes after having had sex with the accused, leaves the Court with a reasonable doubt as to whether Ms. EP consented to a sexual act with Mr. FY. [ 8 ] Second, Ms. EP testified that she went to bed sometime in the afternoon on April 21, 2001 fully clothed. She swore at trial that when she woke up she was completely naked. She was unable to recall when, why or how she shed her clothes. Her inability to recall these events, which occurred before the accused had sex with Ms.

EP, causes the Court to ask if she might have consented to have sex with the accused in this same time frame? This fact, combined with her invitation to Mr. KL to have sex with her, causes the Court to entertain a reasonable doubt on the consent issue. [ 9 ] Third, some of Ms. EP’s post April 21, 2001 conduct is inconsistent with her evidence that she wanted to have as little to do with the accused as possible because of their nonconsensual sex. She initiated contact with him in a number of occasions over an extended period of time.

For example, in 2005 she gave him a painting and in 2008 she asked him to forgive her. IV. Relevant Criminal Code Provisions [ 10 ] Sections 265(1) and 271 of the Criminal Code are the relevant provisions: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly ... .

(2) This

section applies to all forms of assault, including sexual assault ... . 271. Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years ... . V. Statement of Facts A. Introduction [ 11 ] The prosecution called one witness, Ms. EP, the complainant. [ 12 ] The accused neither testified nor presented any witnesses on his behalf. B. Trial Evidence of the Complainant [ 13 ] Ms. EP is the mother of five children, four girls and one boy. As of April 21, 2001, the girls were roughly six, ten, twelve and fifteen years old. Her son was close to three years of age. Ms. EP was thirty-three years old in 2001.

The family resided on the [...] First Nation. [ 14 ] The complainant testified that she hosted a birthday party for her six-year-old daughter during the afternoon of April 20, 2001. After the birthday party ended, Ms. EP delivered her three youngest children to the care of her parents, who lived relatively close by.

[ 15 ] On the evening of April 20, 2001 some of her eldest daughter’s friends congregated at Ms. EP’s home. At approximately 9:30 p.m., Ms. EP went with some of the young people and one other adult by car to a bar in [...], Alberta to purchase alcohol. The bar run did not take long. They returned Ms. EP’s residence within thirty minutes of leaving. [ 16 ] Mr. KL had arrived at the complainant’s home while she was on the bar run. She had not seen him for six months. Mr. KL was her first husband and his mother was the complainant’s father’s sister.

He is a first cousin. [ 17 ] The young people behaved themselves until proximally 5:00 a.m. on April 21, 2001. At that time there was some fighting and Ms. EP, with the assistance of Mr. KL and the RCMP, brought things under control by sometime around 8:00 a.m. [ 18 ] Ms. EP was understandably upset that the young people have misbehaved. She was sufficiently upset by the misconduct of the younger crowd that she intentionally broke some of her basement windows and kicked a bedframe hard enough to hurt herself.

She testified that she had consumed fourteen beers in the period following the termination of the family birthday party and ending at 5:00 a.m. on April 21. By her own account, she and Mr. KL were drunk. [ 19 ] After the fracas with the young people was over, she and Mr. KL spent a couple of hours at her house, waiting for the […] bar in [...] to open. Mr. KL paid an [...] First Nation resident, PK, to drive them to the [...] bar. They arrived at the bar at approximately 10:30 a.m. [ 20 ] According to Ms. EP, she and Mr. KL joined a group of acquaintances at a large table. Mr.

FY, the accused, sat to the complainant’s left. An older woman, Ms. W, sat to the complainant’s right. [ 21 ] Ms. EP drank some more beer and hard alcohol – perhaps eight drinks in total. She also ate some pizza while at the bar. [ 22 ] Sometime between 2:30 p.m. and 2:45 p.m. on April 21, Ms. EP staggered out of the bar for the ride home. Mr. KL had called Ms. PK to have her pick them up. Ms. EP swore that she and Mr. KL were intoxicated. The accused also accompanied Ms. EP and Mr. KL on the ride back to the reserve. The complainant opined that Mr. FY was also intoxicated. [ 23 ] Ms. EP stated that Ms.

PK dropped the complainant off first at her home and that she went to bed immediately after using the bathroom. Messrs. FY and KL did not come with her. The complainant asserts that she did not remove any of her clothes before getting into bed. She pulled the sheets up over her and had no recollection of anything which happened in the following five hours. [ 24 ] Ms. EP woke up at dusk the same day. The sun was setting. There was still some daylight. [ 25 ] She noticed that Messrs.

FY and KL were in her bedroom. [ 26 ] The complainant was shocked to discover that the accused was having sexual intercourse with her. She had no clothes on and had no recollection of having removed her clothes. [ 27 ] Mr. KL was sitting on a nearby chair consuming crack while Mr. FY was having sex with the complainant. [ 28 ] Neither the complainant nor the accused said anything to each other while the accused was having sex with her. There is no evidence that Ms. EP asked Mr. KL to come to her assistance and bring to an end Mr. FY’s contact with her.

Five minutes passed and the accused finished having sex with Ms. EP. [ 29 ] Ms. EP asked Mr. KL “if he wanted a chance too” and inhaled some of the crack Mr. KL had with him before having sex with Mr. KL. The complainant asserted that she had not used cracked before April 21, 2001. [ 30 ] Ms. EP told the prosecutor that she did not consent to having sex with either Messrs. KL or FY. Mr. KL was thirty-four at the time. The accused was at least thirty-seven in 2001. [ 31 ] The complainant recalled that Messrs. FY and KL left her home about thirty minutes after she had awakened. [ 32 ] Ms.

EP swore that she felt “gross” and did not have a shower until a couple of hours had passed. [ 33 ] Later that evening Ms. EP saw her parents and her children at her parents’ home. She did not tell her parents about the incident or anyone else about the incident that evening. [ 34 ] Ms. EP first reported the incident to the Royal Canadian Mounted Police in December 2006. [ 35 ] On direct examination, Ms. EP acknowledged seeing the accused at some family events and a Sundance celebration in the twelve years which have passed since April 21, 2001. The accused lives on the [...] First Nation.

She also recalled giving the accused a painting in July 2005. [ 36 ] Ms. Konye, defence counsel, devoted most of her cross-examination to cataloging discrepancies between Ms. EP’s trial evidence and her preliminary inquiry evidence. The preliminary inquiry took place on September 20, 2011. [ 37 ] The list of discrepancies is a lengthy one. It includes a different recollection of the guest list for the birthday party, whether the complainant was asleep at 5:00 a.m. April 21, who drove Mr. KL and Ms. EP to Frontiersman bar, how much alcohol Ms.

EP drank at the Frontiersman, whether the complainant used the bathroom before she went to bed after returning home the afternoon of April 21, 2001, what she was wearing on April 20 and 21, 2001, whether Ms. EP was intoxicated at 5:00 a.m. April 21, 2001 when she deliberately broke the basement windows, whether she recalled who drove her to the Frontiersman, whether the accused was with them when they drove to the Frontiersman, when she arrived at and left the Frontiersman, how intoxicated she was when she left the Frontiersman, the nature of her conversation with Messrs.

KL and FY when they were at the bar and in the car on the trip back to her home, the position of her legs while Mr. FY had sex with her, whether the accused remained in her bedroom while Mr. KL had sex with

her and when she last reviewed a written statement about the incident which she did not disclose to the police. [ 38 ] Defence counsel’s second strategy was to have the complainant confirm the number of occasions Ms. EP saw the accused after April 21, 2001. On direct examination, Ms. EP reported that she saw the accused infrequently at family celebrations, at a Sundance celebration in June 2001 and when she delivered a painting to his home in July 2005. The skillful cross-examination Ms. Konye conducted added to the list. Ms.

EP told the Court that while working at the reserve’s daycare center in 2008, she asked the accused to forgive her. The complainant also swore that after 2006 she had called the accused on the telephone on behalf of others and picked him up while she was driving to or from [...]. [ 39 ] One other aspect of Ms. EP’s testimony is particularly noteworthy. On cross-examination she asserted that after April 20, 2001 she never wanted to be in the same room as the accused.

On redirect examination, the complainant put her aversion to the accused even more strongly - she said she would rather die than have to deal with Mr. FY. C. Findings of Fact [ 40 ] The Court accepts Ms. EP’s evidence that Messrs. FY, the accused, and KL had sex with her at dusk on April 21, 2001. It also finds that she had consumed a large enough quantity of alcohol in the roughly twenty-hour period before the accused had sex with her that she was intoxicated for some portion of this twenty-hour period.

In particular, the Court finds that she was intoxicated when she left the Frontiersman on the afternoon of April 21, 2001 up until the time Messrs. FY and KL had sex with her. [ 41 ] The Court rejects any of her trial evidence that is inconsistent with evidence that she gave on September 20, 2001 at the preliminary inquiry. She acknowledged on cross-examination that her memory with regard to the April 21, 2001 incident was better on September 20, 2001 than it was on November 25, 2013, the day she gave her trial evidence. [ 42 ] The Court also rejects her evidence that she did not discuss with Messrs.

FY and KL her interest in having sex with either or both of them in the hours preceding their sexual encounter. This is because there is a gap in her memory for a period of time preceding her sexual encounter with the accused. I will explain the significance of this below. [ 43 ] The Court accepts the complainant’s version of events which occurred after April 21, 2001. [ 44 ] The Court is not satisfied beyond a reasonable doubt that Mr.

FY had sex with the complainant without her consent. [ 45 ] There are a number of reasons for this determination. [ 46 ] First, after the accused had finished having sex with the complainant, Ms. EP said to Mr. KL, who was sitting on a nearby chair in the bedroom while the accused was having sex with her, “Do you want a chance too?”. This remark may be reasonably characterized as an invitation from Ms. EP to Mr. KL to have sex with her. That she may have consented to having sex with Mr.

KL leaves the Court with a reasonable doubt that she may have consented to having sex with the accused. [ 47 ] Second, the complainant testified that she went to bed sometime in the afternoon on April 21, 2001 fully clothed. She swore that when she woke up five hours later, she was completely naked. She was unable to recall when, how or why she shed her clothes. Her inability to explain this condition, which must have occurred in a time frame before the accused had sex with her, causes the Court to conclude that there is a period of time for which the complainant has no current recollection.

The complainant may have consented to having sex with the accused in this period. The Court, on account of this gap in her memory, combined with her communication to Mr. KL, has a reasonable doubt on the consent issue. [ 48 ] Third, some of Ms. EP’s post April 21, 2001 conduct is completely inconsistent with her claim that she wanted to have as little to do with the accused as possible because of their nonconsensual sex. On cross-examination she asserted that after April 21, 2001 she did not want to be in the same room as Mr. FY.

On redirect examination she put her position even more forcefully – she would rather die than deal with the accused. [ 49 ] In spite of her apparent dislike for Mr. FY, an emotion which would be completely understandable if he forced himself upon her, she willingly initiated contact with him on several occasions over an extended period of time under circumstances which belie her evidence that she has a strong antipathy to the accused. [ 50 ] Sometime in July 2005, Ms. EP visited the accused’s home on the [...] Frist Nation and gave him a painting she had done.

This is not behaviour one would expect from a person who has a strong aversion for another. [ 51 ] The same can be said about Ms. EP’s decision to stop and give Mr. FY a ride while he was walking to and from [...]. That she may have had her children with her does not diminish the significance of this event. This incident occurred after 2006. [ 52 ] It also seems odd that Ms. EP would be willing to make telephone contact with Mr. FY on behalf of others if she felt this antipathy towards him.

These telephone calls were made after 2006. [ 53 ] There is also evidence in the period before 2006 that she was in contact with Mr. FY while he was doing some handyman chores for her parents at their home. She was living with her parents at the time and asked him to do a task in her bedroom. She may have also asked him to give her cigarettes. [ 54 ] The Court’s conclusion that it has a reasonable doubt on the consent issue is not a conclusion that Ms. EP consented to having sex with Mr. FY. She forcefully stated that she did not and that this unwanted sexual encounter made her feel “gross”.

A determination that reasonable doubt exists on a fact-in-issue is not equivalent to a determination that a fact-in-issue did not occur. [ 55 ] To be clear, the Court is not casting aspersions on the complainant. She told the Court what she believed, as of November 25,

2013, had happened on April 21, 2001, a date approximately 4500 days earlier. Her evidence is her present recollection of events whichhappened many years ago. [56] That her trial evidence is inconsistent with her preliminary inquiry evidence is not surprising. She is talking about historicalfacts. But it is troubling. It stands as a warning sign to the Court that the passage of time has affected the complainant’s memory. Hermind has, on occasions, filled in the gaps in her understanding of what happened more than twelve years ago.

This means that the Courthas to be extremely careful as it sifts through the evidence to identify facts it can adjudge have been established beyond a reasonabledoubt. The Court is also keenly aware of the fact that Ms. EP’s evidence is internally inconsistent. Her claim that she would rather diethan have any contact with Mr. FY is undermined by the number of occasions and the nature of the contact she had with him after April21, 2001. [57] The Court is also mindful of the fact that the indictment puts under the microscope a fact pattern which unfolded while theaccused was intoxicated.

A person who is intoxicated has an impaired ability to function. This impairment may adversely affect aperson’s ability to accurately imprint events the person observes. In other words, alcohol may impair a person’s capacity to processinformation about her environment. VI. Analysis A. The Physical Components of a Sexual Assault [58] A person commits a sexual assault if he touches another person in a sexual way without the other person’s consent. TheQueen v. J.A., 2011 SCC 28 , [2011] 2 S.C.R. 440, 450. B.

The Crown has Not Established the Physical Components of a Sexual Assault [59] The prosecution has proved beyond a reasonable doubt that the accused touched the complainant in a sexual way. Ms. EP’sevidence justifies the conclusion that the accused had sexual intercourse with her on April 21, 2001. [60] But Ms.

EP’s evidence, taken in its entirety, does not establish to the necessary degree of certainty required in a criminal case,proof beyond a reasonable doubt that the sex act took place without the complainant’s consent. [61] A determination that the Crown had not proved beyond a reasonable doubt an essential physical component of an offencecompels the Court to declare the accused not guilty of the offence. VII.

Conclusion [62] This Court finds the accused not guilty of the charge that he sexually assaulted EP on April 21, 2001 at the [...] First Nationand acquits the accused of this charge. [63] The Court acknowledges the exemplary manner in which the Crown and defence counsel discharged their duties as officers ofthe court. Heard on November 25 and 26, 2013. Dated at Edmonton, Alberta on November 27, 2013. Thomas W. Wakeling Justice of the Court of Queen’s Bench ofAlberta Appearances:

Mr. Scott Pittman Alberta Justice, Edmonton Rural & Regional Response Office For the Crown Ms. Anna Konye Sprake Song & Konye For the Accused