R v SJP, 2016 ABQB 137

Court of Queen ’ s Bench of Alberta Citation: R v SJP, 2016 ABQB 137 Date: 20160311 Docket: 140254475Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - SJP Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainants must not be published, broadcast, or transmitted in any manner.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 Madam Justice J.H. Goss _______________________________________________________

Introduction [ 1 ] The Accused, SJP, is charged with four counts as follows: 1. sexual assault on X between September 1, 2013 and December 19, 2013 at or near Stony Plain, contrary to s. 271 of the Criminal Code ; 2. touching for a sexual purpose a person, X, under the age of 16 years with his hands, mouth and penis between September 1, 2013 and December 19, 2013 at or near Stony Plain, contrary to s. 151 of the Criminal Code ; 3. assault on Y between October 1 and 16, 2013 at or near Stony Plain, contrary to s. 266 of the Criminal Code ; and 4. assault on Z between October 1 and 16, 2013 at or near Stony Plain, contrary to s. 266 of the Criminal Code . [ 2 ] SJP denies that the alleged incidents of sexual contact took place.

He also denies the alleged incidents of assault. [ 3 ] SJP enters these proceedings presumed to be innocent and that presumption remains throughout the trial, through the analysis of all of the evidence and right through to the end of the decision-making process where a final determination is made on the whole of the evidence. The Crown must, on the evidence put before me, satisfy me beyond a reasonable doubt that the alleged events in fact occurred and that SJP and X, Y and Z were the persons involved in them. The Crown must prove each and every element of the offences charged beyond a reasonable doubt.

The Crown bears the burden of proof and it does not shift. There is no burden on SJP to prove his innocence. Evidence Background [ 4 ] SJP came to Alberta from B.C. at the end of August 2013 looking for work. In September 2013, he met G who ultimately invited SJP to reside at his parents’ home in Stony Plain, Alberta. G resided there with his parents and his three children, X, Y and Z. [ 5 ] SJP got a job with G’s employer. He drove G to and from work each day as G did not have a driver’s licence. Their work hours were from approximately 6:00 a.m. until 5:00 p.m.

SJP worked for this employer from September 16, 2013 to November 16, 2013. Both SJP and G lost that employment on November 16, 2013. They were then off work for a few weeks. SJP acquired a used red car on November 16, 2013 in Vernon, B.C. SJP and G both got a camp job near Fort McMurray and started working there during the first two weeks of December 2013. [ 6 ] SJP resided with G’s family from September 14, 2013 until January 27, 2014. At G’s suggestion, SJP took X’s room and X slept upstairs with her grandparents, on the couch. G’s two sons, Y and Z, shared a bedroom in the basement.

G and SJP slept in the two other basement bedrooms. None of the bedrooms had doors. The interior of SJP’s room could be seen from the hallway. There was also a living room and a washroom in the basement. The grandparents did not allow alcohol in their home. [ 7 ] The three children returned to live with their mother, K, on December 19, 2013. [ 8 ] RCMP Constable Tracie Sanikopoulos videotaped one statement by Y, one by Z, and two by X. Following a voir dire under s. 715.1 of the Criminal Code , I found that the threshold test of reliability had been met with respect to each of the four statements.

All of those videotaped statements, together with the evidence on the voir dire , were entered by consent as evidence in the trial. X [ 9 ] X was eight years old and in Grade 3 when the alleged incidents pertaining to her took place. On January 17, 2014, X gave a videotaped statement to the police. She gave another videotaped statement on September 3, 2014. At the time of trial, she was ten years old. [ 10 ] In the January 17, 2014 videotaped statement, X stated that SJP started touching her a couple weeks after he punched her brothers around Thanksgiving.

X only heard about the punching, she did not see it, as she was upstairs in bed at the time. It made X angry that SJP had punched her brothers and that her father and SJP remained good friends thereafter. She said that it really hurt when SJP touched her. X said that she put a pillow over her head and she tried to get out of the room, but that it was kind of hard because she was only eight. SJP put his hand inside her sweatpants. X said her dad was not home when SJP touched her, and her brother was in his room. As soon as her brother walked in, SJP stopped.

X said that her brother did not see anything, because SJP just stopped as soon as he saw the shadow. [ 11 ] X stated that SJP worked with her dad in Fort McMurray. She said that she tried to get SJP out of the house before SJP came

back home, because she did not want him to touch her again before she left, so she told her mom that SJP had touched her. Her brothers said that he had not, but X said that he had. X then asked the constable about lie detectors. She asked whether the constable would tell her mother or X if she said something that was not true. The constable answered that she would tell X and maybe her mother, which X said made her glad. [ 12 ] X stated that SJP touched her butt and he stuck his finger in and moved it around. X said that she could hardly pee because it hurt.

She stated that she wanted to tell him to stop but did not because he would say “No”. She did not tell her mother sooner because she was scared and SJP said “shush”, to be quiet, not all the time, but sometimes when her dad was home. X said her grandma was upstairs when it happened, and her brothers were probably at the front or in their room. X said that it happened ten or eleven times, from Thanksgiving until her mom came and picked her up. It happened in the morning and in the afternoon. One day, X was home from school and SJP moved his hand a lot faster in case X’s grandmother came downstairs.

X said that SJP licked her the most. Sometimes SJP rubbed X’s private to his thing or private with clothes on. SJP made sex sounds again and again once while he was humping her. Each time it happened differently, as sometimes it tickled and then it hurt. He also licked her in the same spot where the pee comes out, which kind of hurt. [ 13 ] X said it happened in the bedroom which used to be her room, or in the downstairs living room. If it was in the bedroom, SJP would pick X up and put her on the bed.

X stated that if it happened in the living room, she would be watching her show, ask SJP how his day was, SJP would say “fine” and then he would start “touching her and touching her and touching her and touching her” and then X would watch a video or a movie with him. He did it a whole bunch of times. X usually wears pajamas, sweatpants or shorts and muscle shirts or short sleeves. [ 14 ] X also went with SJP to the Red Apple and he touched her in the car. X closed her legs and then when SJP touched her he opened her legs and then she kept closing them and he would open them, which X said she found annoying.

SJP did that seven times. They were driving in the car and X was sitting in the front with her head back and wearing sweatpants. She said that she wore jeans one day when she was going to church, and that SJP would touch her those times when she went to church. She stated that when she was wearing her jeans she could not feel it, but he was still touching her there. She could feel it when she was wearing sweatpants. X stated that all SJP ever did was open her legs in the car to touch her.

X said that she got mad but did not want to tell SJP that she was angry. [ 15 ] In the voir dire at trial, X testified on cross-examination that SJP did not touch her at all prior to Thanksgiving 2013. They got along well and X would sit on his knee on occasion. She also confirmed that she felt very close to her grandparents, with whom she was living, and that she felt she could share any secret with them. Both of them were retired and so they were home all of the time except when they went to church or got groceries.

X’s mother also visited her almost every day after school while X lived with her grandparents. [ 16 ] X stated on cross-examination that G was home a couple of times when SJP touched her. Most of the time he was upstairs. She testified that it happened seven to eight times and that she had less clear memories of the fifth, sixth and seventh times. The last touching was before SJP went off to work in Fort McMurray.

SJP was in Fort McMurray working during the first two weeks of December 2013. [ 17 ] On cross-examination, X confirmed that she had told lies before and that she had been caught lying before lots of times. X got the idea that she might have to take a lie detector from watching TV shows. She thought it was a pretty scary thing because the lie detector would be able to tell if she was telling the truth.

X confirmed that it would be scary for her if someone found out she was not telling the truth. [ 18 ] In her second videotaped statement on September 3, 2014, X stated that when they were in the red car driving to Red Apple it was 11:00 p.m. She was wearing pyjamas. X’s mom was working at Red Apple that night and X had asked SJP to take her there. SJP did not touch her on the way there. They went inside Red Apple and saw X’s mother. X stated that she did not tell her mother because SJP was standing right beside her. They got some treats and then got back in the car.

X put her seat back to lay down for a bit, closed her eyes and then SJP touched her and kept opening her legs until they got home. SJP would drive, look and then touch and then drive, look and then touch. X was pretty sure he touched her under her pants. X stated that when they got to the lights and if it was a red light then, if he was not turning, he would touch her very fast until the light was green. X stated that SJP was eating chips and he would touch her with whatever kind of chips they were, which would hurt.

SJP touched her until they got home. [ 19 ] X stated that one morning she went downstairs to SJP’s room in her pyjamas to get some of her clothes which were still in the dresser in his room. SJP said “Come in”, X said “No” and then he pulled her to the bed and put her on it. X said she was lying down and could not get up. He was not wearing a shirt. SJP then touched her with his finger under her pyjamas and rubbed her vagina. X said that SJP always touched her with this finger and then after he would always either lick his finger or wipe it on his pants.

SJP then pulled her pants down and licked her vagina with his tongue for two seconds. X said that SJP then humped her with his pants on and her pants up which made the bed move because he was humping her so hard. His body was moving up and down. He humped her for two minutes. X was still lying down or was sitting up at this point and SJP was sitting on her, or lying on his stomach right on X but she could not recall exactly. Her legs were spread apart. She said that she tried to squirm away, but SJP pulled her back. She stated that every time SJP saw a shadow he would stop and pull her pants up really quick.

She did not think that there was anyone else downstairs. It lasted five minutes. Afterward, X went back upstairs. Her grandma was upstairs making bread. X said that she was going to tell somebody, but she did not because SJP came back upstairs again two minutes later. [ 20 ] X said that this happened three or four times. She stated that SJP would not say anything to her when he was doing this. Whenever he humped X, he made quick breaths, like a panting noise. When he stopped he would roll off of X.

He said “shhh” all the time when he was done touching or sexually assaulting X. [ 21 ] X stated that the touching started about a month after SJP beat up her brothers and continued for about two months. [ 22 ] In the voir dire at trial, X testified that she remembered the September 3, 2014 interview, was telling the truth at the time, and that it was still what she remembered happening. However, she testified, when examined by the Crown, that she did not remember the

humping part but remembered the rest. On cross-examination, she confirmed that she did not remember SJP humping her although she remembered talking about it. When asked if the humping in bed was something she had made up, she replied “Yes”. X testified that her memory had faded with time but then later testified that her memory was getting better with time. [ 23 ] On cross-examination, X testified that she did not have a memory today of the first or second time SJP touched her. She did recall the third touching which happened downstairs the day her grandmother was making bread. She did not remember the next time.

SJP had touched her before the night that SJP drove her in his car to Red Apple. She clarified that when she said in her statement “sometimes in the car” she meant that it had happened only once in the car. X confirmed that she did not remember that SJP touched her on the way to church or when she was wearing jeans, and that it could have been a lie. She could not even remember going to church. Y [ 24 ] Y was 11 years old and in Grade 6 on October 12, 2013 when the alleged incidents took place. On February 5, 2014, Y gave a videotaped statement to police.

At trial, he was almost 14 years old. [ 25 ] In his videotaped statement, Y stated that one or two days after Thanksgiving in October 2013, SJP came home and went downstairs. SJP was not drunk. Y and Z were downstairs watching a movie. SJP then pulled an oval shaped bottle of white liquid out of his pants and Y saw him mixing it with pop and drinking it. SJP got drunk. Y and Z were playing around in their room and the living room when SJP started chasing them. SJP did not seem upset. They were all fooling around. Then SJP pushed Y and Z back into the TV which caused a bruise on Y’s heel. The TV was not damaged.

Y then went into his bedroom to go to sleep for the night. SJP came into Y’s room, sat on Y and then laid on the bed. Y got up and went back to the living room. SJP then punched him across the face with his right hand with a partially closed fist which caused Y’s mouth to bleed. Y returned to his room and laid on his bed. SJP came into the boys’ room wearing his underwear. SJP hit Z’s head into the doorframe and Z told SJP to stop but he did not. SJP sat on top of Y again and pushed Y’s head so that his head hit his iPod docking station once. This left Y with a big bump.

SJP hit Y a total of three times that night. Y stated that SJP was goofing around with them, but he was actually kind of hurting them. Nothing like that had ever happened before. Things were good between SJP and Y until this happened. SJP then went to his own room. The two boys went upstairs and told their grandma what had happened. It was between 10:00 p.m. and 1:00 a.m. The boys were told to sleep upstairs. Y also spoke to his father, G, about what had happened. After this occurred, Y and Z did not really talk to SJP anymore and stayed in their rooms playing their PS3 and iPod when they were home.

They only walked to the store with everyone in the afternoon, instead of at night as they had all done before. [ 26 ] In the voir dire at trial, Y testified on cross-examination that when SJP came downstairs, Y and Z were playing video games, such as Grand Theft Auto, which involve violence, punching, kicking, swearing, stealing and sexual contact. Y and Z started wrestling because they like to wrestle. SJP then got involved, they were all playing and fooling around, and SJP was wrestling too. Z was on SJP’s back piggy-back style with his hands around SJP’s neck for about one minute.

Z was hitting SJP, still fooling around, as part of the wrestling. Y was trying to grab SJP’s arms. Y testified that SJP did not seem upset, he just looked kind of retarded and stupid because he was drunk. SJP did not say anything before he struck Y on the right lower cheek which caused Y to bite his cheek and his mouth was bleeding. SJP was then able to break Z’s headlock. When SJP came to the boys’ room he was bugging them and sat on Y. The bump on the left upper side of Y’s head from striking the docking station was the size of a golf ball and lasted three to six days.

Y told his grandparents about the bump and they felt it. Y testified that he does not remember a lot of this. [ 27 ] Y also stated in his videotaped statement that he never observed anything between SJP and X, and confirmed on cross- examination in the voir dire at trial that he saw no inappropriate behaviour between SJP and X. X also did not tell Y anything about her and SJP until after she had made her disclosure to her mother. Y’s immediate reaction to hearing X’s disclosure was that X was not telling the truth because Y had not seen anything.

Y testified that he now believes his sister because she said it under oath or on a promise to tell the truth. Z [ 28 ] Z was 10 years old and in Grade 4 when the alleged incidents took place. On February 5, 2014, Z gave a videotaped statement to police. At trial, he was 13 years old. [ 29 ] In his videotaped statement, Z stated that SJP came downstairs around 9:00 p.m. or 10:00 p.m. on a Sunday, pulled a glass bottle of alcohol out of his pants and started drinking. Z’s grandmother does not like drinking in the house and does not allow alcohol downstairs. SJP drank the whole bottle.

SJP then started calling Z and Y “little dicks” and called them over to which Z said “No”. This made SJP mad, so Z started running away and SJP chased him. SJP grabbed Y and Z’s hands and squeezed them hard. Z said “stop”, but SJP did not stop, he just squeezed their hands more. Finally, Z got away and SJP stepped toward them and pushed them into the TV which almost broke the TV. Z and Y then went to bed and SJP kept on calling them. Then SJP came into the boys’ room in his underwear and sat on Y who was lying on the bottom bunk on his stomach. SJP punched Y in the lip, giving him a bleeding lip.

Z then got on SJP and started hitting him to get him off Y. That made SJP mad. SJP grabbed Z’s head and bashed it once into the door frame, giving Z a huge bump on his head. Then SJP hit Y’s head on the corner of the iPod docking station in the boys’ room. When Z and Y said that they were going to call their dad, SJP said, “Go for it”. Z ran upstairs and told his grandmother, but she did not go downstairs. Y and Z slept upstairs that night. The next day, G got mad at SJP. Z said that SJP had never hit them before that.

SJP used to take them to the store and buy them pop and other things. [ 30 ] In the voir dire at trial, Z testified that SJP grabbed his head and hit it against the doorframe, which gave Z a headache. In cross-examination, Z confirmed that he was on SJP’s back the night of the assault and hit SJP once on the shoulder with his right hand when SJP was hitting Y’s head against the docking station. He confirmed that his hands were on SJP’s shoulder, not around his throat. Z was not trying to choke SJP.

Z stated that he has problems with his memory. [ 31 ] Z stated in his videotaped statement that X climbs on and over guys a lot. Z saw SJP put his hand on X’s butt three or four times when X was sitting on his lap. X did not tell Z anything about SJP touching her and licking her privates until after she had made

her disclosure to her mother. Z did not believe X at first when she said that SJP did some really gross things to her because Z did notbelieve SJP would do that. However, when X said that she was not lying, Z believed her. Z had never seen anything like that happenbetween them. On cross-examination in the voir dire at trial, Z testified that he remembered when X made her disclosure in theirmother’s car, and that both he and Y said, “That’s not true”. This was an honest statement of Z’s belief at the time, and is still hisposition.

Z did not believe his sister as he had seen SJP and X together for three months and he had never seen anything untoward orinappropriate, other than when SJP put his hand on X’s butt and X sometimes sat on SJP’s lap. Z saw nothing else. K [32] K is X, Y, and Z’s mother. G is their father. K has three older children as well. [33] X, Y, and Z lived with G and their grandparents from September 2013 to December 19, 2013 after K lost her house and untilshe could get back on her feet. The children were close with their grandparents.

K was aware that SJP, whom she had met, also lived atthe house. [34] After Thanksgiving in 2013, Y and Z told K that SJP had hit them. K did not see physical evidence of the hitting. Shegenerally saw the kids every day after work but did not see the boys until about a week after the alleged incident. [35] On December 19, 2013, K picked up the three children and told them they would be moving permanently to another city withK. Either before or after she told them this, X disclosed that she had been seriously sexually touched by SJP. X said SJP had touched herin her private parts.

All three children were in the car. The boys reacted right away and said it was not true. X also said that she wasscared that she would have to go back to their grandma and grandpa’s home. K contacted the RCMP shortly thereafter. SJP [36] SJP testified that when he lived at the Stony Plain house, he would shower, relax and interact with the kids after work. Asidefrom the wrestling incident with Y and Z, he got along well with the kids, including X.

Sometimes Z and X would wrestle and engage inhorseplay while Y stuck to himself more, playing video games. [37] Regarding Y and Z’s allegations, SJP testified that he recalled physical contact with them on November 7, 2013, the weekendbefore he bought the red car. He arrived home at around 7:00 p.m., having had two beer after work. He went downstairs. He confirmedon cross-examination that he did not have any alcohol hidden on his person. Downstairs, SJP was met by Z and Y who started wrestlingand roughhousing with him.

Z grabbed SJP from behind, was on his back and had him in a choke hold or headlock with one arm aroundhis neck. This hold put pressure on SJP’s throat and he started having trouble breathing. SJP was standing up. Y was at SJP’s front,trying to grab hold of him. SJP described it as being a little more serious than horseplay. SJP could not breathe and Y kept on trying tograb his hands. SJP got quite concerned and gave Y a “rather hard” push into a wall. He then broke Z’s headlock by grabbing his hands,pulling him off his neck and letting him go.

SJP described that he “flipped him off” but clarified on cross-examination that he did not flipZ. Z landed behind him on the ground. SJP did not see Z land. He stated that they were not near a door, but Z may have hit the TV or theTV stand. SJP then yelled at the boys in a loud voice not to do that as he was upset and angry. The boys were also upset at SJP and werealso yelling. Both boys said they would call or tell their dad, to which SJP said, “Go ahead”.

The boys did not complain that they werehurt, nor did SJP see any sign of injury, however he confirmed that he also did not inquire of the boys whether they were hurt. SJP laterapologized to the boys. [38] SJP testified that he did not go into Y’s room, and he denies hitting Y’s head into the docking station. [39] Regarding the allegations by X, SJP testified that he never touched, licked or humped X. He confirmed that he had drivenwith the kids in his car and that he had driven X as a lone passenger in his car once, for five minutes, when he took her to Red Applewhere her Mom works, to buy candy and junk food.

Argument [40] With respect to counts 1 and 2, the Crown pointed to the discussion of credibility of child witnesses in R v GB, (SCC), [1990] 2 SCR 30, 111 NR 31. In the appeal decision ((1988), (SK CA), 65 Sask R 134 at 150, [1988] SJNo 204), Wakeling J.A. stated that it was unremarkable that the youthful witness would eventually find shelter in silence or simpleagreement with counsel's suggestions on cross-examination, and that it was unacceptable that adult standards be applied withoutmodification when measuring the credibility of youths’ testimony.

Wilson J. for the Supreme Court commented: 48 ... [Wakeling J.A.] was simply suggesting that the judiciary should take a common sense approach when dealing with thetestimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that thecourts should not carefully assess the credibility of child witnesses ... [A] flaw, such as a contradiction, in a child's testimony should notbe given the same effect as a similar flaw in the testimony of an adult. ...

While children may not be able to recount precise details andcommunicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to themand who did it...

The credibility of every witness who testifies before the courts must, of course, be carefully assessed, but the standardof the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. [41] The Crown argued that this common sense approach must be taken in dealing with the evidence of the three children in thiscase. [42] The Crown also argued that the videotaped statements of each of the children, given a few months after the alleged events,should be given more weight than their evidence at trial two years later.

The Crown referenced R v CCF, (SCC),[1997] 3 SCR 1183, [1997] SCJ No 89 at para 19, wherein Cory J. noted that children will have a better recollection of events shortly

after they occurred than they will some weeks, months or years later. The Crown further pointed out that Constable Sanikopoulos wastrained and experienced at interviewing children, and did not actively try to draw information out of the children by prompting orleading. [43] The Crown argues that the Court can convict SJP on counts 3 and 4 on his own story alone. [44] Defence counsel argued that the Court cannot safely convict SJP on counts 1 and 2, given the evidence of X, whoacknowledged that she had lied and made up portions of her evidence.

Regarding counts 3 and 4, defence counsel urged the Court toaccept SJP’s evidence which, even if not accepted in its entirety, raises a reasonable doubt.

Analysis R v DW [45] SJP testified during the trial, and credibility and reliability are central issues in this case. [46] The Supreme Court in R v DW, (SCC), [1991] 1 SCR 742, 122 NR 277 provided guidance in how to assessand consider the evidence in such situations, emphasizing that a criminal trial is not a credibility contest: (1) if I believe the evidence of the accused, I must acquit; (2) if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; (3) even if not left in doubt by the evidence of the accused, I still must ask myself whether I am convinced beyond a reasonable doubtof the guilt of the accused on the basis of the balance of the evidence which I do accept.

Counts 1 and 2 [47] SJP gave his evidence in a forthright manner, answering clearly and without hesitation. He appeared to be answeringquestions fully and frankly, even where that answer did not portray him in the best light, such as when he stated that he pushed Y “ratherhard” the night of the alleged assaults on Y and Z. He was unshaken in his testimony on cross-examination, clarifying certain details ofhis evidence in a consistent manner.

In weighing his credibility, I am mindful of the fact that SJP has a criminal record which includes aconviction for an offence of dishonesty dating back to 1996, namely fraudulently obtaining transportation. Nevertheless, SJP seemedcredible in his testimony. [48] I must also carefully assess the children’s evidence in determining whether the Crown has proved its case beyond a reasonabledoubt. [49] The children had been temporarily living with G until K got back on her feet. X was angry after she heard that SJP hadpunched her brothers and she was mad that her father and SJP remained good friends.

K testified that X may have disclosed theallegations prior to K telling the children that they would be moving permanently to another city with K. X expressed a desire not toreturn to her grandma and grandpa’s home. [50] X’s evidence at trial was that she remembered the September 3, 2014 interview, and was telling the truth, but she did notremember the humping part. She said in her second videotaped statement that the humping had happened three or four times. On cross-examination she confirmed that she did not remember SJP humping her, although she remembered talking about it.

When asked if it wassomething made up, the humping in bed, she replied “Yes”. X testified that her memory had faded with time, but then later testified thather memory was getting better with time. [51] X also gave evidence at trial that the touching happened about seven to eight times and not ten to eleven times as she had saidin her first statement. She confirmed on cross-examination that she did not have a memory at trial of the first or second time SJP touchedher. She gave evidence that she did recall the third touching which happened downstairs the day her grandmother was making bread.

Thisis the day she alleged that SJP also humped her, which she now testifies was fabricated. [52] X testified at trial that she also does not remember the next touching, which would be the fourth, and that she has less clearmemories of the fifth, sixth and seventh times. The last touching was before SJP went off to work in Fort McMurray. She had testifiedabout the touching in SJP’s car on the way home from Red Apple, which she said was not the first time he had touched her. This couldbe the eighth touching.

In her first statement, she said that all SJP ever did was open her legs in the car to touch her and referenced itoccurring on the way to church and when SJP drove her to Red Apple. She stated in her first statement that she was wearing sweatpantsthe day SJP touched her in the car on the way home from Red Apple. In her second statement she said that she was wearing her pyjamas.She stated that when she would wear her jeans going to church she could not feel it, but he was still touching her there.

Then at trial, afterhaving watched her videotaped statements, X confirmed that she did not remember that SJP touched her when she was wearing jeans oron the way to church, and that it could have been a lie. She could not even remember going to church. She also confirmed at trial that thetouching had happened only once in the car, even though in her statement she referenced there being other times. [53] On cross-examination at trial, X confirmed that she had told lies before and that she had previously been caught lying “lots oftimes”.

[ 54 ] Y also stated in his videotaped statement that he did not ever observe anything between SJP and X, and confirmed on cross- examination in the voir dire that he saw no inappropriate behaviour between them. [ 55 ] Z stated in his videotaped statement that he saw SJP put his hand on X’s butt three or four times when X was sitting on his lap, but that he had never seen SJP do anything like the “really gross things” X said that SJP had done to her.

At trial, Z testified that he had seen SJP and X together for three months and he had never seen anything untoward or inappropriate, other than when SJP put his hand on X’s butt, and X sometimes sat on SJP’s lap. Z saw nothing else. [ 56 ] X’s allegation requires no corroboration as a matter of law. Y and Z’s denials of having seen anything untoward between SJP and X are not inconsistent with X’s testimony that these events occurred when SJP and X were alone. However, they do not undermine SJP’s denials either.

I note that there were no doors on the basement bedrooms, and that the interior of SJP’s room is visible from the hallway. [ 57 ] Certain information provided by X in her videotaped statements is troubling and suggests a familiarity with sexual acts which is surprising for a child of her young age. However, interaction with SJP would not necessarily be the only possible explanation for that knowledge. [ 58 ] Further, there are a considerable number of flaws and internal contradictions in X’s testimony.

A child cannot be expected to recount precise details, and flaws should not be given the same effect as a similar flaw in the testimony of an adult.

However, I find that the flaws in X’s evidence go beyond the inability to recount precise details, or to explain her story in a coherent fashion. [ 59 ] Given X’s confirmation at trial that she had made up portions of what she alleged SJP had done to her, her inability to recall other incidents she alleged, her evidence that she has less clear memories of still other incidents she alleged, and her evidence that she could have lied about incidents she alleged against SJP, I do not accept any of her evidence as being credible. [ 60 ] The task for this Court is not to determine whether sexual contact possibly or even probably occurred between SJP and X, but rather whether the Crown has established beyond a reasonable doubt that it did, in fact, occur.

I have found SJP to be credible in his evidence. His evidence raises a reasonable doubt. Even if his evidence, in and of itself, were not sufficient to raise a reasonable doubt, X’s evidence leaves me with a reasonable doubt as to whether or not any of the alleged incidents of sexual contact actually occurred between SJP and X. [ 61 ] I find SJP not guilty on counts 1 and 2. Counts 3 and 4 [ 62 ] Regarding the evening on which SJP had physical contact with Y and Z, again I generally found SJP to be credible.

However, there may be a question as to the reliability of SJP’s evidence as there is evidence that SJP had been drinking. Y gave evidence that SJP was drinking and was drunk. Z also gave evidence that SJP was drinking alcohol that night. SJP testified that he had consumed a couple of beer after work. [ 63 ] SJP testified about horseplay with the boys, and trying to get them off of him. SJP’s recollection of what occurred was similar to Y’s recollection in some respects. Y gave evidence that he and Z were wrestling, and then SJP got involved and was wrestling too. They were all playing and fooling around.

Y said that SJP pushed him in the basement living room which is consistent with what SJP stated. Y also stated in his evidence that SJP was goofing around with them, but he was actually kind of hurting them. SJP testified that it was a little more serious than horseplay. [ 64 ] Y gave evidence at trial that Z was on SJP’s back piggy-back style with his hands around SJP’s neck for about one minute. Z was hitting SJP, still fooling around, as part of the wrestling. Y was trying to grab SJP’s arms. SJP looked “kind of retarded and stupid”. SJP did something to Y and was then able to break Z’s headlock.

This is consistent with SJP’s evidence. [ 65 ] SJP’s story regarding that night makes sense, considering the context provided by Y in his evidence that they were all playing and goofing around, but SJP was actually kind of hurting them. SJP’s evidence was also that Y and Z started wrestling and roughhousing with him but it was soon a little more serious than horseplay as Z’s hold put pressure on SJP’s throat and he started having trouble breathing. This led SJP to push Y “rather hard” and to get Z off his back by breaking his headlock.

SJP was upset and angry. [ 66 ] Y’s evidence is inconsistent with SJP’s evidence in that he stated that SJP arrived carrying a clear bottle of alcohol and was drinking it in the basement that night. He stated that SJP punched him across the face with his right hand with a partially closed fist which caused Y’s mouth to bleed when he bit his cheek. He also testified that SJP went into Y’s room twice, sat on Y twice, hit Z’s head into the doorframe and pushed Y’s head so that his head hit his iPod docking station.

All of this is denied by SJP and his denials were not shaken on cross-examination. [ 67 ] Z stated in his evidence that SJP was chasing Y and Z and grabbed their hands. Y got out of SJP’s grasp and was pushed into the TV. Z was on SJP’s back, with his hands on SJP’s shoulder, and hit him. This is not inconsistent with SJP’s evidence. [ 68 ] Z’s evidence is inconsistent with SJP’s evidence in that he stated SJP was carrying alcohol and drinking downstairs on the day of the alleged assaults.

He also stated that SJP came into their room and sat on Y, punched Y in the lip, hit Z’s head into the door frame and hit Y’s head on the corner of the docking station. All of this is denied by SJP and his denials were not shaken on cross-examination. [ 69 ] Y testified that he does not remember a lot of what occurred. Z testified that he has problems with his memory. This diminishes somewhat the reliability of their evidence at trial. [ 70 ] There was no independent evidence of any of the alleged injuries resulting from this incident.

[ 71 ] SJP’s evidence alone raises a reasonable doubt in my mind with respect to the allegations that SJP assaulted Y and Z in the boys’ bedroom. While Y and Z did admit to hitting SJP and climbing on his back, they appeared to try to minimize their involvement in the contact, particularly in relation to the events they described happening in the bedroom.

The boys’ evidence in this regard of essentially gratuitous violence on the part of SJP while the boys remained passive does not ring true in the context of the wrestling and horseplay about which they testified. [ 72 ] SJP acknowledged that he and the boys were involved in physical contact or horseplay, which became more serious and ultimately left him upset and angry. [ 73 ] Y may have bit the inside of his lip or mouth, causing it to bleed in the course of the horseplay, however the evidence is not clear as to exactly how that would have occurred.

I find that it probably did not occur from an intentional punch to the face. [ 74 ] SJP did confirm that he pushed Y, and that in breaking Z’s hold around his neck, Z may have hit the TV or the TV stand. [ 75 ] Therefore, SJP’s evidence does not raise a reasonable doubt that he applied force intentionally to Y and Z. However, both Y and Z gave evidence, consistent with SJP’s version, that the three were playing and goofing around in a manner involving physical contact.

I am satisfied on the whole of the evidence that the boys probably initiated the horseplay with SJP, they were capable of consenting to such horseplay, and they did in fact consent to the horseplay with SJP on that occasion. [ 76 ] Therefore, it is in this context that I must assess whether the “rather hard” push of Y, and breaking Z’s hold, possibly causing him to hit the TV or the TV stand, constituted assaults against Y and Z. I find that SJP’s evidence raises a reasonable doubt on both counts 3 and 4. SJP, Y and Z all described Z as being on SJP’s back during the tussle.

SJP and Y described Z as having his arms around SJP’s neck. Z said he had his arms around SJP’s shoulders. Y said he was trying to grab SJP’s arms. Z was hitting SJP. I am satisfied that this physical contact occurred and was incidental to the horseplay. I also find that SJP’s push of Y and breaking of Z’s hold around his neck are properly considered to be part of the horseplay to which the boys consented. I am left in doubt that SJP intended to cause, or caused, any serious harm to either Y or Z. [ 77 ] Reasonable doubt is not a farfetched or frivolous doubt, nor is it a doubt based on sympathy or prejudice.

Reasonable doubt means a doubt that is based upon reason and common sense, and is logically connected to the evidence or the absence of evidence. [ 78 ] SJP’s evidence is, on its own, plausible and credible. It does give rise to a reasonable doubt. Even if it did not give rise, in and of itself, to a reasonable doubt, on the whole of the evidence I am left with a reasonable doubt in relation to counts 3 and 4. Conclusion [ 79 ] The charges are dismissed. Heard on the 16 th to 19 th days of February, 2016. Dated at the City of Edmonton, Alberta, this 11 th day of March, 2016. J.H. Goss J.C.Q.B.A. Appearances: R.S.

Niblock

Alberta Justice for the Crown P. J. Royal, Q.C. Royal & Company for the Accused