R v CMG, 2016 ABQB 368

Court of Queen’s Bench of Alberta Citation: R v CMG, 2016 ABQB 368 Date: 20160803 Docket: 141031617S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - CMG Respondent 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. Identification Ban – See the Youth Criminal Justice Act , sections 110(1) and 111(1). No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person. NOTE: This judgment is intended to comply with the restrictions so that it may be published. _______________________________________________________

Reasons for Judgment of the Honourable Madam Justice S.L. Martin _______________________________________________________ Appeal from the Acquittal by The Honourable Judge P. McIlhargey Acquitted on the 30 th day of June, 2015 Docket: 141031617Y1-01-001 & 002 1. Introduction [ 1 ] The teenage male accused was acquitted of two charges involving sexual offences against a young female complainant, after a three day trial with conflicting testimony and many witnesses.

The Crown appeals and urges this court to either find the accused guilty because he admitted having underage sex with the complainant or order a new trial because the trial judge erred in law when assessing her credibility. 2. Basic Facts [ 2 ] The accused faced two separate charges and the dates in the indictment are important: Count 1: Between the 1 st day of July, 2013, and the 18 th day of July, 2013, both dates inclusive, at or near Strathmore, Alberta, did commit a sexual assault on RW, contrary to

section 271 of the Criminal Code of Canada . Count 2: Between the 1 st day of July, 2013, and the 18 th day of July, 2013, both dates inclusive, at or near Strathmore, Alberta, did for a sexual purpose touch RW, a person under the age of sixteen years directly with a part of his body to wit: his penis, contrary to

section 151 of the Criminal Code of Canada . [ 3 ] In July 2013, the accused CG was sixteen and the complainant RW was 13 years of age. [ 4 ] The trial judge understood that consent is not a defense to sexual assault or sexual interference where a complainant is younger than 16 under

section 150.1(1) of the Criminal Code , RSC 1985, c C-46. [ 5 ] The accused testified, and he and the complainant gave different versions of events. [ 6 ] The complainant RW testified she was living with her aunt for the summer in Strathmore and she had previously met the accused in a group and knew him. She alleged that she went to the Kinsmen Park to meet her girlfriend RS. The accused was also at the park and they had a chance meeting there around July 17 th , 2013. He told her he was also there to see the complainant’s friend RS. The complainant and the accused walked together to try to find RS.

At this point RW testified that CG “kept asking for sex” and that “I kept saying no. [...] I was 13, I was not ready.” She stated that the question came up randomly. She testified that he asked “[d]o you want to have sex” 7 or 8 times, and that each time her answer was “no”. [ 7 ] When they reached a more secluded part of the park he pushed her down to the ground, covered her mouth, removed her clothing and forced his penis into her vagina. She initially tried to squirm away but could not. She said she then escaped when she wiggled out from under him sufficiently to kick him and then run away.

RW testified in cross-examination that her legs were “outside of his legs,” and that when he was moving about she got one leg up to her chest area and “barrelled it” into him. [ 8 ] She did not tell anyone about this event at the time. She phoned her friend RS to say she was not feeling well and would met her the next day.

She eventually disclosed what she says happened to her mother later that year, in December, when she was being punished for other things and when she was being pressed by her mother about what happened that summer. [ 9 ] The accused CG admitted that he had intercourse with RW during the summer of 2013, though never in Kinsmen Park. In his police statement he said they had sex twice, both times at her aunt’s house. In his examination in chief at trial he first said they had sex twice. He then said they had sex three times, at three different places: the aunt’s house, the back alley at the aunt’s house and at his

house. In cross-examination he said he did not know when they had sex or the sequence of the places where they had sex. He did notremember the dates of the admitted intercourse, or where or when the first time this occurred, or various details because he said he hadsex with a lot of girls that summer. Nevertheless he testified that she initiated kissing, asked him if he wanted sex and he said “sure” orjust went with it, she took off her own clothing and that she was always on top of him. [10] The accused testified that all sex was consensual and that he asked RW her age and she said that she was 16.

He said hebelieved her because she was taller than he was, and because of the shorts and tank tops that she wore. He testified that he never askedher what school she went to or what grade she was in. 3. The Trial Judgment [11] The trial judge acquitted the accused after following the basic framework of W (D), (SCC), [1991] 1 SCR742. [12] The trial judge made many express findings concerning credibility: “I do not believe the evidence of either the complainant or the accused.

Belief is not really an issue it is credibility.” (At page 214, line20.) “The accused’s evidence, for the reasons indicated by the crown, I do not find credible. I do not find credible at all, too manycontradictions, too many inconsistencies. He was, on a number of occasions, qualifying answers he has given either in the statement orhere today so I do not accept his evidence.

I am not left in doubt by it.” (At page 214, line 39.) [13] Further, the trial judge expressly rejected the accused’s evidence that he thought RW was 16 during the summer of 2013: “[h]is evidence of age, I do not believe and I do not accept his evidence. The question he asked her was when they first met, I believe washis evidence. How old are you? Sixteen. Certainly there is no consideration of sex at that point, not in the context of sexual relations, Ithink something more would have been required.

I do not believe it would have been sufficient in the circumstances, however I am notrequired to rule on that because I do not accept his evidence.” (At page 215, line 1.) [14] The trial judge also did not accept the complainant RW’s evidence or find that it established guilt beyond a reasonable doubt.He considered various aspects of her credibility and the Crown takes particular issue with the following comments: Now on the date of the incident she did not scream, she did not run for help. She ran to the Co-op and called her friend and told her shecould not meet her friend.

At no point did she ever mention this to a friend, no complaint to a friend. There was no change in her, her auntwith whom she was living, did not notice any change in her demeanor in her at all, in fact she said it was a great summer they got alongvery well. She did not confide in her aunt. (At page 215, line 41.) [15] The Crown argues first, that the trial judge erred by not finding the accused guilty based upon his admission of sex with RW.Second, the Crown says the trial judge allowed outdated myths and stereotypes to affect his reasoning about the complainant’scredibility.

Third, the Crown says the overall decision was unreasonable and did not provide sufficiently intelligible reasons. [16] The accused argues the trial judge committed no reviewable errors. 4. Standard of Review [17] Generally on a

summary conviction appeal, the standard of review on a question of law is correctness, and the standard ofreview for a finding of mixed law and fact is palpable and overriding error: Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 SCR235. [18] The standard of review is deferential unless the Crown can show the trial judge committed a palpable and overriding error: Rv Kruper, 2007 ABCA 17 at para 18.

It is not enough for the reviewing court to have a different opinion than the trial judge: R vGagnon, 2006 SCC 17 at para 10. [19] This is an appeal from an acquittal and acquittals are not lightly overturned: R v Sutton, 2000 SCC 50, [2000] 2 SCR 595. [20] The onus on the Crown is heavy. They must first establish that they are raising a question of law. Under s. 830 and s. 676(1)(

a) of the Criminal Code, the Crown may appeal an acquittal on a question of law alone. The Crown is not permitted to appeal an“unreasonable acquittal” (see R.v Biniaris, 2000 SCC 15 at para 33, [2000] 1 S.C.R. 381). In Biniaris, it was held that the concept ofunreasonable acquittal was “incompatible with the presumption of innocence and the burden which rests on the prosecution to prove itscase beyond a reasonable doubt.” [21] Second, there must be a nexus between the error in law and the acquittal.

The Crown must satisfy the appellate court that theerrors of the trial judge might reasonably, in the concrete reality of the case at hand, have had a material bearing on the acquittal: R vGraveline, 2006 SCC 16 at para 14; R v ADG, 2015 ABCA 149 at para 28. The Crown must satisfy the court with a reasonable degreeof certainty that the error may well have affected the outcome: R v Morin, (SCC), [1988] 2 SCR 345 at 374; R v ADG, atpara 28.

More recently, in R v Barros, 2011 SCC 51, the Supreme Court held that the Crown must satisfy the appellate court with “areasonable degree of certainty” “that had the [legal] errors not occurred, there would not necessarily have been an acquittal” (at para 79). [22] The standard of review on a question of law is correctness, and if there was an error, the Court must consider whether theverdict would have been the same despite the error: R v Jacquard, (SCC), [1997] 1 SCR 314.

[ 23 ] Whether a verdict is unreasonable is a question of law reviewable on a correctness standard, but, as above, whether a witness is credible is a question of fact.

Therefore, the reviewing court cannot interfere with the credibility assessment in finding the verdict was unreasonable, unless the credibility assessment cannot be supported on any reasonable view of the evidence: R v RP , 2012 SCC 22 at para 10 . [ 24 ] The Alberta Court of Appeal explained that the assessment of whether a verdict is unreasonable involves determining whether the verdict is one that a properly instructed jury or a judge could have reasonably rendered: R v Reid , 2013 ABCA 289 at para 29 ; see also, R v RP at para 9.

Whether the trial judge misapprehended the evidence is a stringent standard, and such an error “must play an essential part... in the reasoning process resulting in a conviction”: R v Lohrer , 2004 SCC 80 at para 2 ; Reid at para 30 . [ 25 ] Reasons that are not sufficiently intelligible to permit appellate review on the correctness of the decision amount to an error of law: R v Sheppard , 2002 SCC 26 at para 28 . [ 26 ] Credibility determinations are notoriously difficult and complex and attract significant deference.

In R v REM , 2008 SCC 51 at para 49 , the Supreme Court said that, “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.” The Respondent argues that findings of credibility cannot be appealed and in any event, should not be disturbed. 5. Did the Trial Judge Err by Not Finding the Accused Guilty Based on His Admission that he had Sexual Intercourse with an Underage Girl? [ 27 ] This accused faced charges of sexual assault and sexual interference and chose to testify at trial.

During both direct examination and cross-examination, he admitted to having sex with the complainant during the summer. [ 28 ] In argument before the trial judge, the Crown recited the formula of WD , without taking into consideration that the accused’s testimony was inculpatory and not exculpatory. The Crown submitted that if the accused was believed, or his version raised a reasonable doubt, that he ought to be acquitted.

However, on these particular facts, if this accused was believed he would not necessarily be acquitted as he admitted the offence. [ 29 ] The trial judge was alert to the potential impact of the accused’s admissions, defined them as self-incrimination, and stated at page 216 line 35: Now the accused in his testimony, and again I do not believe him, so I suppose that may be an end to the matter, but it is protected, I believe, under

section 13 of the Charter and under the provisions of the Canada Evidence Act ... [ 30 ] The trial judge also concluded at page 217 line 4: So in this case we are dealing with a specific incident alleged during a specific time period. It was basically a rape in Kinsmen Park, and I am not satisfied beyond a reasonable doubt that that has been proven on the evidence before me. That would also address the sexual assault in the charge under

section 151 . [ 31 ] The Crown impugns each such finding and argues that this court should substitute a verdict of guilty.

The Crown argues the trial judge misunderstood self-incrimination, the accused’s admissions are binding, the trial judge expressly rejected the accused’s evidence about her age and this indictment is sufficient to ground a finding of guilt based on when he says they had sexual intercourse. [ 32 ] The Respondent argues that the accused’s testimony to having sex with RW on other occasions that summer is protected because they qualify as self-incrimination, they are totally different transactions from what was charged and it would be unfair to convict him on that basis.

On this latter argument the Respondent urges this court to apply the principles discussed by the trial judge in Saskatchewan Court of Appeal in R v Heaton , 2014 SKCA 140 . A. Self-incrimination [ 33 ] I reject the argument that the accused is afforded any protection in the case at bar under s. 13 of the Charter or s. 5(2) of the Canada Evidence Act , RSC 1985, c C-5 [ CEA ].

Sections 13 of the Charter and 5(2) of the CEA are treated as offering the same protection and both provide that prior compelled evidence is inadmissible against an accused, including to challenge credibility, unless the prosecution is for perjury or if the accused is giving contradictory evidence.

Section 13 of the Charter states: A witness who testifies in any proceeding has the right not to have any incriminating evidence so given, used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. [ 34 ]

Section 13 is intended to protect people from being indirectly compelled to incriminate themselves.

Section 13 has been described as a quid pro quo , when witnesses are compelled to give evidence in a proceeding that exposes them to the risk of self- incrimination, the state offers protection against later use of evidence against them: R v Henry , 2005 SCC 76 at para 22 . [ 35 ] The protections are only directed at incriminating evidence, which is evidence given by the witness at a prior proceeding that the prosecution seeks to use at the later proceeding to prove guilt when that witness is being tried at the later proceeding: R v Nedelcu , 2012 SCC 59 at para 16 . [ 36 ] I conclude that neither the Charter nor the CEA protects CG from his own admissions in the circumstances. The accused’s

admissions before the trial judge were inculpatory but they were not incriminating evidence as defined above, and they were notcompelled “in any other proceeding.” This accused freely testified at his trial and the compulsion at the root of the quid pro quo thatengages

section 13 is absent: Henry at paras 42, 47. [37] In conclusion on this point, the accused’s testimony freely given in his own trial on the very charges before the court does notqualify as compelled testimony and does not attract the protection of

section 13 of the Charter or section 5(2) of the CEA: Henry at para46. Further, it would not be unfair to find liability based on the accused’s admissions to the very charges before the court. [38] Thus, if the judge excluded CG’s evidence as so protected, that would be a reversible error of law. However, it is not clear thetrial judge did exclude the admissions on that basis.

Rather the comments about self-incrimination may simply be a secondary oralternative consideration after the trial judge said he did not believe the accused. [39] There is a serious ambiguity in the judge’s findings on the accused’s credibility. While he clearly rejected the accused’sevidence that she told him she was 16, the trial judge also said that he did not believe or accept the accused’s evidence and was not left indoubt about it. It is not clear whether this general statement applies to all parts of the accused’s testimony.

More specifically, did the trialjudge also find that the accused’s admission to sexual intercourse could not be believed and was unreliable? There is no way to knowwhat the trial judge decided on this key factual finding. The generality of his comment that the accused is not credible is wide enough tocover all parts of his testimony.

However, when the trial judge adds that he is “not left in doubt by it” it suggests he is addressing theexculpatory aspects of the accused’s testimony, like his belief she was 16 years old. [40] So while the trial judge’s approach to self-incrimination was incorrect, it may not have affected his decision on this point.However, his failure to make an express finding about whether he believed the accused had sex with the complainant amounts to theomission of a key legal issue and is itself a reviewable error. B.

The Respondent Argues the Admitted Acts Do Not Support a Finding of Guilt [41] I do not accept that the Saskatchewan Court of Appeal decision in Heaton supports the position of the Respondent. In thatcase, the accused was charged with possession for the purposes of trafficking, based on cocaine found in a car outside his home. Theaccused claimed he had no possession or knowledge of that cocaine. However, he testified at the trial and tried to explain the presence ofcertain incriminating text messages by saying that he had sold other cocaine the previous evening.

During closing argument the Crownplaced three different theories of liability before the trial judge: first, he controlled the vehicle and its contents; second, the cocaine in thecar was what had been acquired the night before; and third, he admitted to selling other cocaine the night before and that brought himwithin the four corners of the information.

The trial judge found that his admission fell “squarely within the cocaine traffickingallegation” but ruled it would be unfair to convict because the Crown’s theory was “completely different” from the charge that theaccused came to court to address. [42] However, this decision was reversed by the Saskatchewan Court of Appeal, after it canvassed whether the Crown is bound byits theory of the case and the extent of the accused’s right to know the case to be met before taking the stand to testify.

TheSaskatchewan Court of Appeal found that the case before it did not involve an accused who gave inculpatory evidence of a differentoffense as part of giving exculpatory evidence of the offence before the court; indeed, the accused’s inculpatory evidence concerned thesame charge as he came to court to address: Heaton at para 36.

Further, the Court of Appeal noted the accused elected to testify, theCrown was entitled to revise its theory to accord with the evidence adduced at trial, and any prejudice alleged arose because of theaccused’s decision and not any unilateral action of the Crown: Heaton at paras 45, 47. [43] The Court of Appeal decision in Heaton supports, rather than undermines, the Crown’s argument that

section 13 does notapply to protect CG’s testimony and it would not be prima facie unfair to base liability on his admissions. Following the reasoning in thatcase: CG’s decision to take the stand was his alone, and CG gave evidence of the same offence for which he was before the court: thiswas not materially different conduct. This was not a case of CG giving inculpatory evidence of a completely different offence than thatwith which he was charged.

Further, based on her age, any intercourse would be illegal, the Crown would have been free to amend itstheory of the case to respond to what is learned through his testimony, and the admitted conduct fell squarely within the indictment. [44] In addition, the time or date of the incident is not usually a central element of the offence for sexual assault, particularly whenRW was incapable of providing consent given her age at the time.

It appears that the trial judge did not accept that the admissions metthe timeframe stated in the indictment, assuming, but not deciding, that time was a crucial element of the offence. I agree with the Crownthat such an analysis was required.

In argument before the trial judge, the Crown did not present argument on these points, with the resultthat the trial judge viewed the timing issue too narrowly, both on the law and on the whole of the evidence. [45] The Supreme Court has held that if there is conflicting evidence regarding the time or date of an offence, and they cannot beestablished with precision, a conviction may still result if time is not an essential element of the offence or crucial to the defense: R vB(G), (SCC), [1990] 2 SCR 30 at para 52 (Westlaw) at para 44 (QL).

The trial judge must assess whether time is acrucial element of the offence, and only where it is may inconsistencies preclude conviction: R v B(

G) at para 53 (Westlaw) at para 45(QL). R v B(

G) was a case of sexual assault involving a child complainant. In that context, the Supreme Court explained that “the date ofthe offence is not generally an essential element of the offence of sexual assault. It is a crime no matter when it is committed”: at para 53(Westlaw) at para 45 (QL). [46] In this case, the trial judge did not find whether the time or date was an essential element of the offence or crucial to the defense. The charge reads that the sexual assault and/or sexual interference took place between July 1st and July 18th, 2013.

RW said theforced intercourse took place on July 17, 2013. [47] While the accused and the trial judge spoke of the “summer” generally, the timeframe can be narrowed down to when bothRW and CG were in Strathmore at the same time. RW says she came to Strathmore in July. CG testified that he thought he first met RWat the very end of June and saw her at least ten times that summer: with 4-5 times being at her aunt’s. He left Strathmore to go to

Lethbridge on August 13, 2103. There is therefore some overlap with the very times expressed in the indictment. If a wider view istaken, then sex between July and August 13, 2013 would also be within the legally relevant time frame because the sex acts were crimesregardless of when they were committed during that period. C. Conclusion [48] By way of remedy, the Crown seeks the substitution of a verdict of guilty.

Under s. 486(4)(b)(ii) Criminal Code, a court ofappeal may enter a verdict of guilty with respect to the offense the accused should have been found guilty but for the error in law. [49] In R v Cassidy, (SCC), [1989] 2 SCR 345 at para 16, Lamer J. (as he then was) described when it isappropriate to enter a verdict of guilty when an appeal must be allowed: The Crown replies that the Court of Appeal may allow a Crown appeal against an acquittal entered by a trial judge and substitute averdict of guilty where the Crown establishes that an error of law was committed at trial, satisfies the Court of Appeal that, had therebeen a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should havebeen found guilty but for the error of law.

In this respect, the principle that has been established at common law is that all the findingsnecessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue (Vézeau v The Queen,, (SCC), [1977] 2 S.C.R. 277, at pp. 291–92, and R v Courville (1982), (ON CA), 2 C.C.C. (3d) 118(Ont.

C.A.), at p. 125, aff. sub nom., Courville v The Queen, (SCC), [1985] 1 S.C.R. 847). [50] Parts of this test are met as CG is not protected from his admission of illegal intercourse with the complainant, the dates in theindictment would not prevent a conviction, and the trial judge did not believe CG’s testimony that he thought she was 16. [51] However, other factors weigh against the granting of this remedy. First, the trial judge may also have rejected CG’sadmissions as not credible.

A finding of guilt could not arise if the trial judge did not believe the accused’s admissions and the judgmentis not clear on this important point. Second, the complainant says the acts admitted by the accused never happened: her evidence is thatthere was forced sexual intercourse on one occasion rather than illegal intercourse on two or three occasions. Third, unlike in Heaton,the Crown did not make this alternative argument at trial, but raised it for the first time on appeal. As the findings necessary to support averdict of guilty have not been made, it would not be appropriate to make a finding of guilt.

Rather, the above errors, omissions andissues support the need for a new trial. 6. Did the Trial Judge Err by Using Myths and Stereotypeswhen Assessing the Complainant’s Credibility? [52] The Crown argues the judge relied upon discredited myths and stereotypes, as well as old law in the following paragraph,which I repeat for convenience: Now on the date of the incident she did not scream, she did not run for help. She ran to the Co-op and called her friend and told her shecould not meet her friend. At no point did she ever mention this to a friend, no complaint to a friend.

There was no change in her, her auntwith whom she was living, did not notice any change in her demeanor in her at all, in fact she said it was a great summer they got alongvery well. She did not confide in her aunt. (At page 215, line 41.) [53] Several issues arise concerning these comments. First, what role did these comments play in the judgment? Second, did thetrial judge rely on myths and stereotypes and old law? Third, has the Crown established an error of law? A.

What Role Did These Comments Play in the Judgment? [54] It is possible that the judge was simply setting out particular facts, testimony or evidence in this impugned paragraph.However, I have come to the conclusion that these facts were not simply being used to establish context, they were used as factors indetermining the complainant’s credibility. The trial judge began by concluding that he did not believe the complainant. These commentsappear in the approximately four paragraphs in which he addresses her credibility and are more likely an explanation of this key finding. B.

Did the Trial Judge Rely on Myths and Stereotypes? [55] In this

section I first address the legal principles surrounding myths and stereotypes that have evolved in cases of sexualviolence and then apply those principles to the comments made by the trial judge. i.

The Legal Principles Surrounding Myths and Stereotypes in Cases of SexualViolence [56] It has now been widely recognized by Parliament, the Supreme Court of Canada, and courts across the country, that previouslegal rules and out-dated and unequal social attitudes historically operated to impede the fair prosecution and defense of sexual offenses.A unique set of provisions, principles, and practices–that applied only to sexual offenses–placed a firm finger on the scales of justice.The result was a legally sanctioned credibility gap between complainants based on the type of crime they alleged.

These uniqueprovisions, principles, and practices included: Criminal prohibitions that focussed on rape, did not prohibit marital rape, and set up a complex system of offenses.

Consent was not defined and there was a wide defence of mistaken belief in consent. The Criminal Code contained a corroboration requirement which required a warning to jurors that it was dangerous to convict a person ofa sexual offense on the testimony of the complainant alone. The doctrine of recent complaint required that true victims of sexual force would raise an immediate hue and cry and tell the first personthey encountered what had happened to them. There was a large ability to cross examine complainants on their prior sexual conduct.

There was access to many personal records of the complainant, including medical and counselling records. The special needs of children and vulnerable complainants were rarely accommodated. [57] As a result of increased knowledge about the incidence and harms of sexual violence, shifting public attitudes and theintroduction of constitutionally entrenched rights, Parliament made legislative amendments in 1974, 1980, 1983 and 1992.

The changesincluded: The new Criminal Code prohibitions focus on sexual assault instead of rape and have tried to rationalize sexual offences against children.The marital rape exemption was repealed and replaced by s. 278 of the Criminal Code. Consent is now defined as the voluntary agreement of the complainant to engage in the sexual activity in question in s. 273.1 of theCriminal Code, s. 273.1(2) provides when no consent is obtained, and the defence of mistaken belief in consent has a morecircumscribed availability and application under s. 273.2.

The corroboration requirement was repealed in s. 274 of the Criminal Code. Now no corroboration is required for conviction and thejudge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration. The doctrine of recent complaint was abrogated under s. 275 of the Criminal Code.

Section 276 of the Criminal Code sets out the procedure and legal test that governs the admissibility of evidence of a complainant’ssexual activity in a manner that balances the constitutional rights of the accused and the complainant. Sections 278.1 to 278.91 outline a detailed regime for the production of records that involve personal information. The Criminal Code now allows child witnesses to testify outside the courtroom or from behind a screen, to have a support person withthem, and to be questioned only by counsel for the accused.

See s. 486 of the Criminal Code. [58] In these changes, Parliament recognized that all witnesses who claim they have been victims of crime should enjoy the samebaseline standard for credibility assessments: certain categories of complainants should not start from a deficit position or face theadditional barriers of being discredited based on myths and stereotypes. [59] There were also judicial developments throughout this period and an ongoing process of criticism, revision and review.Sometimes legislated amendments were subsequently changed when they failed either to meet or respect constitutional standards orachieve their desired goal. [60] Broadly speaking, myths and stereotypes rest on untested and unstated assumptions about how the world works or how certainpeople behave in particular situations.

They often involve an idealized standard of conduct against which particular individuals aremeasured. Sometimes general, assumed or attributed characteristics are applied to a particular individual or circumstance, often withoutan analysis of whether there is any merit in the general assumption or whether it truly applies in a particular situation.

It was said in R vSeaboyer; R v Gayme, (SCC), [1991] 2 SCR 577 at 654: Like most stereotypes, they operate as a way, however flawed, of understanding the world and, like most such constructs, operate at alevel of consciousness that makes it difficult to root them out and confront them directly.

This mythology... influences a judge or juror’s perception of guilt or innocence of the accused and the “goodness” or “badness” of thevictim, and finally has carved out a niche in both the evidentiary and substantive law governing the trial of the matter. [61] The Supreme Court “has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as theyjeopardize the courts’ truth-finding function”: R v AG, 2000 SCC 17, [2000] 1 SCR 439 at para 2. A trial is a truth seeking process andmyths and stereotypes distort that process and undermine that goal.

In R v Mills, (SCC), [1999] 3 SCR 668, themajority of the Supreme Court explained that speculative myths, stereotypes and generalized assumptions about sexual assault victimslimit the search for truth and “impose harsh and irrelevant burdens on complainants in prosecutions of sexual offences”: at para 119. [62] The Supreme Court has also said that myths and stereotypes undermine a fair trial: which means a trial, which is fair to theaccused, the complainant and the public. See R v Harrer, (SCC), [1995] 3 SCR 562 and R v Lyons, (SCC), [1987] 2 SCR 309.

The use of myths and stereotypes also threatens the constitutional rights of complainants and engages theirrights to life, liberty and security of their person, as well as their sex equality rights: sections 7, 15 and 28 of the Canadian Charter ofRights and Freedoms.

Given that sexual offenses are under-reported and occur mostly against women and male and female children,Justice L’Heureux-Dubé explained “the need to affirm principles of equality and human dignity in criminal law by addressing theproblem of myths and stereotypes about complainants in sexual assault cases”: R v AG at para 1 in concurring reasons, and also R vO’Connor, (SCC), [1995] 4 SCR 411. [63] Discredited myths and stereotypes can be invoked to determine the presence or absence of consent, and/or employed whenassessing the complainant’s credibility, both generally and when deciding whether the circumstances were as she described.

In the case

at bar, consent is not in issue, but credibility played a central role. [64] The Supreme Court of Canada has provided extensive guidance on how to assess the credibility of sexual assaultcomplainants. In SeaboyerB, Justice L’Heureux-Dube outlined 10 prevalent rape myths that have affected reasoning in sexual assaultcases, and others have been identified in the jurisprudence.

In R v O’Connor, the majority of the Supreme Court addressed the issue ofcomplainants being presumed to lack credibility at para 124: In my view, a legal system which devalues the evidence of complainants to sexual assault by de facto presuming their uncreditworthinesswould raise similar concerns. It would not reflect, far less promote, "a society in which all are secure in the knowledge that they arerecognized at law as human beings equally deserving of concern, respect and consideration" (Andrews v.

Law Society of BritishColumbia, (SCC), [1989] 1 SCR 143, at para 171). [65] Many such myths have their foundation in the same set of beliefs that gave rise to the special and replaced set of provisions,principles and practices that characterized the prior law on sexual offences. ii. Were Myths and Stereotypes Engaged by the Comments of the Trial Judge? [66] I conclude that the answer is Yes.

I accept the argument of the Crown that when analyzed, each unexplained part of thisimpugned paragraph appears to tap into a discredited line of reasoning and fails to take the whole of the complainant’s testimony intoconsideration. The comment that she did not scream or run ties into the idea that true victims of sexual assault will resist their attack.

Thecomment that she did not tell her friend or her aunt resurrects the abrogated doctrine of recent complaint, and noting how she appearednormal to her aunt, as well as all the other comments, suggests that there is a particular way in which real victims of sexual violencewould behave. The trial judge’s comments in the case at bar illustrate how quickly such myths and stereotypes can be engaged. [67] It is also important to my finding that the trial judge did not expressly state why this evidence was relevant or how it was usedin the analysis.

Depending on the circumstances, any of these comments may have had been relevant and material to a fact in issue.However, absent any express or explicit explanation of the probative value of such comments, the prospect looms large that the trialjudge is employing impermissible myths and stereotypes. a.

She did not scream or run away [68] The trial judge included in his assessment of the complainant’s credibility the fact that the complainant “did not scream” or“run for help.” The rejected myth potentially underlying such a comment is that a person who genuinely does not wish to engage insexual activity will either physically resist or attempt to escape.

R v Osolin, (SCC), [1993] 4 SCR 595 at paras 36-37(Westlaw) at paras 168-169 (QL). [69] In R v Ewanchuk, (SCC), [1999] 1 SCR 330, Justice L’Heureux-Dubé labelled as myth the idea “that anywoman could successfully resist a rapist if she really wished to”: at para 82. She argued against the stereotype that women should usephysical force and not resort to courts to “deal with” sexual assaults, and that it is the women’s responsibility to express an unequivocal“no” and fight her way out of a perpetrator’s attempts to force sexual activity: at para 93.

Chief Justice McLachlin added that “thespecious defense of implied consent, as applied in this case, rests on the assumption that unless a woman protests or resists, she should be‘deemed’ to consent... such stereotypical assumptions... no longer, however, find a place in Canadian law”: at para 103. [70] In those cases, the impermissible line of reasoning was invoked on the issue of consent.

In the case at bar, it is directed only tocredibility, but the same analysis applies. [71] In addition, the trial judge does not take comment on or appear to take into account the full evidence of the complainant onthese matters. RW testified that she could not scream as his hand was over her mouth during the assault. She further testified that heplaced his hand over her mouth and that when he changed his hands to pull down the other side of her pants, he replaced the hand heheld over her mouth.

She also testified he pushed her to the ground and was on top of her until she kicked him, when she stated that shedid in fact run away, after she did in fact resist. b. She did not tell her friend or her aunt [72] The Supreme Court has held that the belief that a complainant’s testimony is unreliable unless she made a complaint shortlyafter the event is a “notorious” example of an outdated myth: Mills at para 119. This statement from the trial judge suggests that victimswho were actually raped would make an immediate complaint and tell someone, thus reviving the abrogated doctrine of recentcomplaint.

See Seaboyer at para 151. [73] In R v DD, 2000 SCC 43, the majority held that a delay in disclosure can never give rise to an adverse inference against thecomplainant’s credibility: R v DD at para 65. The majority was clear that requiring recent complaint is a reviewable error: at para 63,citing R v W(R), (SCC), [1992] 2 SCR 122 at 136.

The majority explained at para 63 that this was especially the casewith child complainants of sexual assault: The significance of the complainant's failure to make a timely complaint must not be the subject of any presumptive adverse inferencebased upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse. [74] In R v Shearing, 2002 SCC 58, the concepts of recent complaint and limits to cross-examination were addressed.

Thedefense’s position that it should have been able to cross-examine on a complainant’s failure to record the abuse in her diary was based on“an unspoken and unproven premise” that she should have recorded the abuse in her diary: at para 120. The majority noted at para 120that this was based on myths and stereotypes of how victims should behave:

[Without] an evidentiary basis for the premise that abuse ought to have been recorded, the result of allowing the cross-examination toproceed as proposed by the defence (“the entire contents are fair game”) would be to allow the defence to go to the jury at the end of thetrial and to point to the absence of entries in an effort to suggest – nod nod wink wink – that women and children who are sexually andphysically abused do not suffer in silence, but must and do confide their inner hurt even if only to their private diaries. [75] The Court also found in R v W(R), that the Court of Appeal below improperly relied on the stereotypical belief that victims ofsexual assault are likely to report the acts.

The Court explained that the converse is likely true, victims of abuse do not disclose theirabuse often until a substantial time has passed: R v W(

R) at 136. [76] In R v L(DO), (SCC), [1993] 4 SCR 419, Justice L’Heureux-Dubé said at 441-442: ... We cannot disregard the propensity of victims of sexual abuse to fail to report the abuse in order to conceal their plight frominstitutions within the criminal justice system which hold stereotypical and biased views about the victimization of women. [...] These stereotypical views are equally relevant where children are involved.

A recognition of the gendered nature of child sexualabuse and of the way in which young women are particularly victimized does not, of course, imply the denial of the trauma and painexperienced by boys and adolescent victims of sexual abuse. They are also too often silenced by a society which tends to disbelieve themand to stigmatize them by calling into question their sexual identity once they do disclose the abuse. We live in a society which continuesto blame even the most innocent of victims. [77] In terms of her testimony, RW explained why she did not tell anyone.

RW testified that she did not tell her friend RS whathappened because she did not want anyone to know. She testified that she did not tell her aunt because she was ashamed, and did notwant anyone to know because she was embarrassed. On the day it happened, she said she went to her room and stayed there by herselfuntil her aunt called her up for dinner. [78] RW testified that she told her mother what happened with CG in the park much later, in December 2013. She said it was reallybothering her and she thought if she did not talk to anyone about it, it would go away.

She testified that her mother could tell somethingwas wrong, and her mother demanded to know what it was. When she told her mother, her mother took her to see a doctor, and the policestation. c. The complainant’s aunt did not notice any change in her behaviour [79] The trial judge also commented that her aunt did not notice a change in the complainant’s demeanour. This comment, as wellas the other above comments, may impliedly and improperly suggest that there is one typical response of true victims.

This runs afoul ofnumerous remarks to the contrary by the Supreme Court of Canada and the Alberta Court of Appeal. [80] In R v DD at para 65, the Supreme Court cautioned that trial judges should recognize and instruct juries that there is “noinviolable rule how people who are victims of trauma like a sexual assault will behave”.

It is simply a myth that women who have reallybeen raped will be hysterical and their terror and injuries will be plain to see: R v Shearing at para 121 and Seaboyer at para 104. [81] In R v ADG, the Alberta Court of Appeal recently reiterated the standard to apply to the testimony of a sexual assaultcomplainant, particularly with respect to avoiding the use of rape myths and stereotypes to inform assessing the complainant’scredibility.

They stated at para 33: No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault issupposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resortto folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R v Shearing, 2002SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD, 2000 SCC 43 atpara 63, [2000] 2 SCR 275.

It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way.Findings of credibility should not be affected by the timing of disclosure alone – that is, affected by a comparison between acomplainant’s disclosure and the disclosure of a hypothetical ‘objectively reasonable’ victim. [82] Thus, it is an error for the trial judge to make the assertion he did without providing an explanation that is not based on theimpermissible inference. iii.

Has the Crown Established the Requisite Error of Law? [83] The Crown argued that the trial judge showed real or apprehended bias in his reliance on myths and stereotypes. A finding ofreal or apprehended bias would clearly amount to an error in law sufficient to set aside an acquittal. However, such a finding requires asound basis and clear evidence.

See R v S(RD), (SCC), [1997] 3 SCR 484 at para 49, where the Supreme Court stated: Before concluding that there exists a reasonable apprehension of bias in the conduct of the judge, the reasonable person would requiresome clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flowsfrom the presumption of impartiality of the judiciary. [84] There are cases in which the judge’s use of myths and stereotypes, sometimes in conjunction with other comments andactions, are of such a number and nature that the presumption of judicial impartiality is rebutted.

However, there are also other cases inwhich the more appropriate analytical framework is that the judge has engaged in impermissible reasoning by failing to followlegislation or jurisprudence. [85] In this case, there is no clear evidence of real or apprehended bias. Instead, I find the judge engaged in impermissiblereasoning and committed an error of law by relying on myths and stereotypes about sexual assault and sexual assault complainants,

which have been removed by legislation and which have been discredited by the Supreme Court of Canada. [ 86 ] Without some explanation from the trial judge about how the above evidence was used, weighed and assessed, those comments are not pillars on which a proper credibility analysis may rest. Just as it is an error for a judge to reason based on disreputable conduct, similar act evidence unless certain limited conditions apply, the Supreme Court has identified various myths and stereotypes that operate to threaten the proper assessments of credibility in sexual offences.

The Supreme Court has held that relying on myths and stereotypes, without a sound explanation, is as much an error of law as any other form of impermissible reasoning.

In some cases the current use of such myths involves reliance on repealed provisions, but they often also involve a prohibited form of assumption or speculation. [ 87 ] In R v Wagar , 2015 ABCA 327 , the Alberta Court of Appeal vacated an acquittal and ordered a new trial in part because: We are also persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgment.

There were also instances where the trial judge misapprehended the evidence (at para 4). [ 88 ] A review of the transcript and reasoning shows that while the case at bar is different from what happened in Wagar , the Alberta Court of Appeal recognized when sexual stereotypes and myths find their way into a judgment, that a legal error has been committed. [ 89 ] Other courts have also recognized that relying on myths and stereotypes in a credibility assessment amounts to an error of law.

In R v RGB , 2012 MBCA 5 , t he Manitoba Court of Appeal said at para 59: To sum up, because credibility findings are questions of fact, the Crown generally has no right to appeal from an acquittal on a ground that alleges an error with respect to such a finding. Similarly, the Crown cannot appeal a judge’s conclusion that there exists a reasonable doubt, as that does not raise a question of law. Nevertheless, the credibility of a witness should be judged on the evidence before the judge, not on stereotypical assumptions.

A judge would err in law if there is a sound basis to conclude, on appellate review, that a credibility finding was not based on a proper evidentiary foundation, but rather on inappropriate judicial stereotyping. [ 90 ] In conclusion, the Crown has established the requisite error in law and has further demonstrated a nexus between the error and the acquittal.

I am satisfied that credibility findings were not based on a proper evidentiary foundation, but rather on inappropriate judicial stereotyping and conclude, with a reasonable degree of certainty that, had the judge taken a correct view of the law, there would not necessarily have been an acquittal. A properly instructed jury could have believed the complainant’s testimony and convicted the accused on her uncorroborated testimony alone.

In R v JMH , 2011 SCC 45 , Cromwell J., for a unanimous court, wrote at para 39 that it is only when “ a reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted.” That test is met in the case at bar. 7. Was the Decision Unreasonable and Not Supported by the Evidence? [ 91 ] Finally, the Crown submits that the Reasons for Judgment were fatally flawed, and require a new trial. My conclusions in the above

section are sufficient to order a new trial. However, it is appropriate to consider these further arguments, whether or not they amount to separate errors of law, as they add weight to my conclusion that the accumulated errors may have affected the outcome of the trial. [ 92 ] The trial judge discussed many other matters in relation to credibility.

There are no difficulties in respect of his treatment of the demeanour of either the accused or the complainant or his reference to “issues with identification.” [ 93 ] However, in the remainder of his reasons, the trial judge outlined inconsistencies in the evidence but did not seem to take into account the law on how to address inconsistencies in the evidence of children and young persons.

He also failed to explain what inferences, if any, he drew from various other pieces of evidence he relied upon. [ 94 ] In respect of inconsistencies he noted that she said she slept on a bunk bed, her aunt said it was a futon, but did not say if that had any impact on his decision. [ 95 ] RW testified that at the time of the incident she was about 5’6” and he was taller than her, about 5’10” or 5’11” '.

T he trial judge noted that the accused’s father said the accused was between 5’4” and 5’5” during the relevant time frame and the judge believed “some weight” should be given to that evidence. [ 96 ] When asked whether she was never caught outside the house with others, RW said no and her aunt said there were people outside one night and the aunt chased them away. The accused testified to being chased away. [ 97 ] The trial judge also drew attention to the complainant’s description of the incident. She described that the: accused had wrapped his legs around her legs so her legs were apart and not together.

She was able to free one leg so that could knee him. That was her evidence. That does not seem consistent with the other actions described. [ 98 ] With respect, no reason is given for why her account of events is inconsistent. She testified how she was able to squirm under him and get her leg free and to bring it her knee up and kick him off her. It is unclear what was meant. [ 99 ] The trial judge also does not explain why some of these differences may amount to material inconsistencies with the potential to bear on her credibility. The case law also suggests that:

The proper approach to the evidence of children is not from the perspective of rigid stereotypes, but on a common sense basis with asensitivity to the fact that children may experience the world differently from adults with a different recollection of details that seemimportant to adults, like time and place: R v W(

R) at 133-134. [100] R v W(R), dealt with the proper approach to the evidence of child complainants in sexual assault cases. Flaws in a child’s oryoung person’s testimony should not be given the same effect as similar flaws in an adult’s testimony, and the standard of a “reasonableadult” is not necessarily appropriate for assessing the credibility of children: at 133, citing R v B(

G) at paras 54-55. [101] Similarly, the Alberta Court of Appeal recently affirmed that there may often be understandable inaccuracies in the evidence ofa child complainant, including confusion about details of the incident, such as time and place, which may be important to adults: R vADG at para 38. Children are prone to forget details with the passage of time, and should not be held to the same exacting standards asadults: R v ADG at para 38. [102] While many of the cases have dealt with very young children, such observations continue to apply to older children, with ageappropriate modifications.

The trial judge did not articulate the standard which he either did or should have employed for a 15 year oldwitness who was describing events that took place when she was 13. In R v WHM (1990), (PE SCAD), 87 Nfld &PEIR 339 (PEISC(AD)), aff’d (SCC), [1992] 1 SCR 984, the failure to apply case law on how the evidence of childrenshould be approached was not viewed as an error of law.

I do not say that this is an error of law that can ground a new trial; it is merelyamong the matters that make it possible that the errors of law established had a bearing on the outcome of the case. [103] Other matters noted by the trial judge have the potential to bear on credibility but there is no explanation as to which availableinference was accepted or why. For example, the trial judge noted that RW admitted she has lied to her mother on a number of occasions,but does not say what, if any influence that admission had on his assessment of her credibility.

These admitted lies were not in respect ofthe alleged sexual assault, but rather related to matters such as talking on the phone too long and staying out too late. Two very differentinferences can be drawn from RW’s admission that she lied from to her mother about such matters from time to time. One is that if shelied to a parent she cannot be trusted to tell the truth to a court under oath.

However, it is also possible that admitting to previous lies onmatters unrelated to the accused may demonstrate that she knows the difference between a truth and a lie and is prepared to admitunpleasant truths about herself when under oath. [104] Similarly, the trial judge observed that RW was under significant pressure from her mother to disclose what happened thatsummer in the aunt’s home. The mother had learned that the aunt found a condom full of water in the basement where RW was staying,and where her friend RS and her friend’s boyfriend visited them.

The judge described the complainant as being pressed, under duressfrom a mother who was mad at her and who was taking away privileges from her until she came “clean.” The mother threatened furtherincreasing penalties in addition to what had already occurred: taking away her phone and iPad and removing the door from her bedroom.RW’s mother said she was expecting RW to tell her that she had snuck a boy into her aunt’s house. Instead, after two or three days ofsuch punishments, RW told her mother she had been assaulted.

The mother testified that RW was crying when she told her the story andwas distraught. [105] This evidence begs the question: does pressure of this type provide an incentive to fabricate a story that may get RW out oftrouble or is it what forced RW to overcome her stated reluctance to tell anybody about what really happened to her? [106] Further, the trial judge noted that her mother told her she would be grounded forever if her allegation of sexual assault was nottrue.

Does this threat compound any incentive to lie or does it simply underscore the importance of RW telling the truth? [107] These additional difficulties with the remaining considerations on the credibility analysis mean that such errors may, incombination and in the concrete reality of the case at hand, have had a material bearing on the acquittal. 8.

Summary and Disposition [108] In my view, the learned trial judge made errors in law about self-incrimination and by allowing unexplained myths andstereotypes to enter his assessment of the complainant’s credibility. The trial judge also failed to take into account all her testimony,noting peripheral inconsistencies and failing to explain the inferences drawn from evidence that could have either supported orundermined her credibility.

Certain important findings of fact were not made or were not made with sufficient clarity, and some findingsappear not to be supported by the evidence as a whole. [109] These several legal errors may have affected the outcome of the trial. [110] For the above reasons and with respect, I order a new trial. Heard on the 12th day of February, 2016. Dated at the City of Calgary, Alberta this 3rd day of August, 2016

S.L. Martin J.C.Q.B.A. Appearances: Elisa Frank for the Appellant C. John Hooker for the Respondent