R v Arook, 2016 ABQB 528

Court of Queen’s Bench of Alberta Citation: R v Arook, 2016 ABQB 528 Date: 20160923 Docket: 131438012Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Raed Arook Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction [ 1 ] The Accused was directly indicted on November 26, 2013 with respect to the following three counts: Count 1 – On or about the 10 th day of September, 2013, at or near Edmonton, Alberta, did unlawfully commit a sexual assault upon …. (the “Complainant”), contrary to

Section 271 of the Criminal Code of Canada . Count 2 – On or about the 10 th day of September, 2013, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of …. the Complainant, a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada . Count 3 – On or about the 10 th day of September, 2013, at or near Edmonton, Alberta, being a large on his recognizance entered into

before a Justice and being bound to comply with a condition of that recognizance requiring him to keep the peace and be of good behaviour, did fail without lawful excuse, to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada . The Law Sexual Assault

Section 271 Count 1, and Sexual Interference

Section 151 Count 2 [ 2 ] Count 1 charges the Accused with sexual assault contrary to

Section 271 of the Criminal Code . To find the accused guilty of sexual assault, the Crown must prove beyond a reasonable doubt that (

a) the Accused intentionally applied force to the complainant, and (

b) that the force the Accused intentionally applied took place in circumstances of a sexual nature. [ 3 ] A sexual assault is any intentional application of force, any intentional physical contact with another person other than accidental which occurs in circumstances of a sexual nature so that the sexual integrity of the Complainant is violated. It includes any act that is meant to degrade or to demean the Complainant for the Accused’s sexual pleasure. [ 4 ] With respect to Count 2

Section 151 sexual interference, the Crown must prove beyond a reasonable doubt (

a) that the Complainant was under 16 years of age at the time of the alleged offence; (

b) that the Accused touched the Complainant; (

c) and that the touching was for a sexual purpose. [ 5 ] Touching is done for, and has, a sexual purpose if it is done for the Accused’s sexual gratification, or to violate the Complainant’s sexual integrity, including any act meant to demean or degrade in a sexual way. The Crown’s Case Agreed Statement of Facts [ 6 ] The following agreed facts were entered as Exhibit 1 in these proceedings, and are admitted as proven: (

a) The jurisdiction of the alleged offence is not an issue. (

b) The Complainant’s date of birth is March 11, 1998 and she was 15 years old at the time of the alleged offence. (

c) The continuity and integrity of the two disks containing two video recorded statements of the Complainant which have been admitted into evidence pursuant to

Section 715.1 of the Criminal Code are not in question. (

d) The continuity and integrity of the crime scene was preserved by members of the Edmonton Police Service and scene containment during the investigation is not an issue. (

e) The continuity of all exhibits collected by the Edmonton Police Services during the investigation of the crime is not in question, and continuity from the scene to the Court is admitted, including those exhibits sent for analysis. (

f) All photographs taken by Edmonton Police Service members fairly and accurately depict what they pertain to. (

g) The Qualifications of the forensic specialist testifying in the area of DNA evidence are not contested. [ 7 ] I do note that the Court only had an unsigned copy of the Agreed Statement of Facts from September 2015, one year prior to the current trial. After raising this with counsel and my clerk, no one could locate a signed copy of the Agreed Facts. Accordingly I reaffirmed with counsel that these facts were admitted as proven and form part of this trial. The Complainant’s Evidence [ 8 ] Two videotapes were entered as evidence as Exhibits 8 and 10 pursuant to s 715.1.

The Complainant in her trial testimony detailed the events surrounding September 10, 2013 that have led to these charges, during a lengthy two days of evidence, which included a day and a half of cross –examination. [ 9 ] The Complainant’s evidence is that she was 15 years old on the alleged offence date of September 10, 2013, and lived in a group home located off of Whyte Avenue and 96 Street. On September 10, 2013 shortly after 1:00 a.m., she was dropped off by two police officers near Whyte Avenue and 103 Street (Gateway Blvd northbound).

Police had taken the Complainant back to the Whyte Avenue area after responding to a disturbance call in a west end park. The Complainant was intoxicated as a result of drinking and smoking marijuana that afternoon and that evening. She did not want to get in trouble with her group home so she asked to be dropped off nearby so that she did not arrive at the group home very late at night in a police vehicle. [ 10 ] The Complainant was scheduled to visit her father in the afternoon of September 10, 2013. She ended up at the nearby west Edmonton neighbourhood park on the evening on September 10, 2013.

Police were called to the park to investigate a disturbance and a possible sexual assault in progress because a caller reported that a female was demanding that someone stay away from her and stop touching her. The Complainant testified that one of the males at the scene was hitting on her and trying to kiss/touch her, but that she was able to fend him off. Her long time male friend intervened and a fight ensued between her friend and the other male, which she helped to

break up. The Complainant testified that as far as she was aware, she was uninjured in the incident. [ 11 ] Upon an investigation at the park, Cst. Maeda and another officer in the Edmonton Police Service (“EPS”) laid no charges, and drove the friend and the Complainant to their respective homes. [ 12 ] After being dropped off by the police on Whyte Avenue shortly after 1:00 a.m., the Complainant was unsuccessful in finding a bus to take her home, as the buses had apparently stopped running that weeknight. The Complainant then spoke to an individual she encountered on Whyte Ave that night known as Shrek.

She recognized Shrek from her previous work at a nearby Tim Horton’s. After speaking to Shrek, Shrek went and got the attention of a male situated in the Strathcona Hotel (the “Accused”) by whistling at him through an open window. The hotel was very near where the Complainant was dropped off by police. [ 13 ] The Accused directed Shrek and the Complainant to a fire escape in the alley at the rear of the hotel. The Accused, the Complainant and Shrek then consumed alcohol, smoked crystal meth and snorted lines of crystal meth in his hotel room.

When they quickly ran out of the drugs that they were using, the three of them went to the nearby Gazebo Park where the Accused purchased more drugs. Egress from and re-entry to the hotel room was always through the back alley fire escape, and not through the front entrance of the hotel. The three consumed more methamphetamine after they returned from the Gazebo Park. The Complainant then remembers Shrek leaving the hotel room, after which the Accused started kissing her neck and touching her.

The Complainant told the Accused to STOP, but he continued to kiss her and touch her on her breasts and other areas. [ 14 ] The Complainant then remembers that she and the accused were both naked on the bed, and the Accused was attempting to have sexual intercourse with her. The Complainant recalls the Accused masturbating himself trying to get an erection, and trying to penetrate her vagina and/or her anus. The Complainant recalls being digitally penetrated, and the Accused fisting her. [ 15 ] The Complainant acknowledges that she does not remember any of these events in the hotel clearly or in an exact order.

The Complainant eventually woke up later in the day naked, beside the Accused, who was also naked. She was sore in her genital area, and found money and cigarettes in her purse that she did not have prior to waking up. The Complainant says the Accused then told her she had sold herself to him the night before. The Complainant had no money and only had a bus pass when Police had dropped her off. [ 16 ] The Complainant left through the front entrance of the hotel where she was noticed by two front entrance staff.

The Complainant walked back to her group home during now broad daylight, and this walk took approximately 15 to 30 minutes. She disclosed this incident to a friend at the group home, and spoke to two group home workers. The Complainant ended up at the Hospital and underwent a medical examination that evening. [ 17 ] The Complainant then attended the Zebra Centre later the next day September 11, 2013, and provided the first video tape statement, Exhibit 8.

She was able to provide details about the hotel room, the extreme kissing of her breasts by the Accused, and his attempted penile/vaginal intercourse that was painful for her [page 36-40 of Exhibit 8]. She further disclosed the Accused told her he was 35 and she told him she was 17 [page 33 of Exhibit 8], even though she had used her school identification card with her picture and exact birthdate on it to cut the methamphetamine and to do the drugs. A copy of the Complainant’s school identification card was later obtained by police, which showed her date of birth, and that she was 15 years of age.

Other Crown Evidence [ 18 ] Two group home workers both noticed how upset, dirty and dishevelled the Complainant was when she returned home at approximately 4:00 p.m. on September 10, 2013, and how very uncharacteristic this was for her. The group home workers encouraged the Complainant to contact police immediately, and she was taken to the Stollery Hospital that evening by one of her caregivers from the group home for a medical examination. That caregiver, Ms.

Stewart, noticed amongst other things how tenderly the Complainant was walking. [ 19 ] Police spoke with the Complainant at the Stollery Hospital on September 10, 2013, at approximately 6:00 p.m. She provided them with a description of the hotel and the hotel room. She also provided police a description of the Accused, along with clothing she recalled him wearing. She told police that the Accused was a foreign “brown” guy with an accent. The Complainant’s clothing was seized at the hospital and from the group home.

A sexual assault examination was performed on the Complainant that evening at the hospital. [ 20 ] Police then proceeded to the Strathcona Hotel, which matched the Complainant’s description of the hotel, and spoke with the front counter employee, Mr. Eli Pearson. After being provided with a general description, the front counter employee suggested the Accused matched this description and found him checked in as a guest under a passport number. [ 21 ] Police next attended the Accused’s room and spoke with him.

The male answering the door of the room matched the description provided by the Complainant physically, and as well with respect to the clothing that he was wearing. The appearance of the hotel room also matched the description provided by the Complainant. Police then arrested the Accused and handcuffed him after a very brief altercation. [ 22 ] Police seized a number of exhibits from the room, including the Accused’s T-shirt, and a number of swabs were also taken from parts of the room. The Accused was transported to Edmonton Police Headquarters, where a penile swab was collected.

The SART Examination [ 23 ] A sexual assault examination [SART] was performed on the Complainant which revealed amongst other things that the Complainant suffered scratches and bruises to her leg, a three to four centimetre laceration to her labia, and what the SART nurse described in her extensive experience, was an unusual two to three centimetre laceration to her anus. It appeared that the Complainant was menstruating at the time, which the Complainant also testified to. [ 24 ] The SART nurse was not called as an expert witness, but she also observed on Exhibit 3 some 33 different areas of interest on

the Complainant’s body. The DNA Evidence [25] A penile swab was obtained from the Accused shortly after his arrest. A number of swabs from the Accused’s clothes andfrom the Complainant were submitted to the Forensic Science and Identification Services Laboratory. Two of the seven swabs [one fromthe interior groin area of the jeans of the Accused, and the breast swab from the Complainant] resulted in biological material that wassubmitted for further DNA analysis. A blood sample was then taken from the Accused and forwarded to the lab. [26] Amongst the DNA results as contained in Exhibit 7 are: (

a) The DNA typing profile from the swab of the interior groin area of the Accused’s jeans seized on September 10, 2013 whencompared to that of the Complainant’s breast swab resulted in an estimated probability of selecting an unrelated individual at randomfrom the Canadian Caucasian population with the same profile as 1 in 210 million. (

b) The DNA typing profile obtained from the swab of the interior groin area of the jeans worn by the Accused when compared to thesample of the Complainant’s breast swab resulted in an estimated probability of selecting an unrelated individual at random from theCanadian Caucasian population with the same profile is 1 in 210 million. (

c) Assuming the donor of the known breast sample is one of the contributors to the mixed profile obtained, from the known bloodsample from the Accused, the estimated probability of selecting an unrelated individual at random from the Canadian Caucasianpopulation with the same profile is 1 in 4.2 billion. Analysis [27] The Accused did not testify in these proceedings, which is his right and he is presumed to be innocent given that the burden ofproof always rests with the Crown to prove his guilt beyond a reasonable doubt.

Proof beyond a reasonable doubt is much closer toabsolute certainty that it is to a balance of probabilities. The Crown however does not have to prove the essential elements of the offenceto an absolute certainty. [28] The Complainant was 15 years of age, at the time of the alleged offences, and she acknowledged telling the Accused she was17 years of age at the time. Therefore, Criminal Code Sections 150.1 (1) and (4) may be applicable: 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1),160(3) or 173(2) or is charged with an offence under

section 271, 272 or 273 in respect of a complainant under the age of 16 years, it isnot a defence that the complainant consented to the activity that forms the subject-matter of the charge.

(4) It is not a defence to a charge under

section 151 or 152, subsection 160(3) or 173(2), or

section 271, 272 or 273 that the accusedbelieved that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accusedtook all reasonable steps to ascertain the age of the complainant. [29] However there is no evidence before me of any reasonable steps the Accused took to ascertain the age of the Complainant.Accordingly I find that the Accused did not take any, and certainly not reasonable, steps to ascertain the age of the Complainant. [30] The Accused was on a Recognizance to keep the peace and be of good behaviour [Exhibit 11] at the time of these allegedsexual offences, so that a conviction on either Count 1 or 2 will result in a conviction on Count 3. [31] Although I found it unnecessary to rely on the following caselaw from the Supreme Court of Canada about receiving evidencefrom children concerning sexual offences, it is still generally applicable in this matter, notwithstanding that the Complainant was 15 atthe time and may not have been a “young child”, a term the Supreme Court of Canada never defined in relation to a specific age.Accordingly these three Supreme Court of Canada cases are generally relevant, and their principles referred to in some very limited specific references in my Analysis section: (

a) R. v B.(G.) (SCC), [1990] 2 SCR 30 ... Dealing first with Wakeling J.A.'s comments regarding the credibility of child witnesses it seems to me that he was simply suggestingthat the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the sameexacting standard on [page55] them as it does on adults. However, this is not to say that the courts should not carefully assess thecredibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing withchildren as the appellants submit.

Rather, he was expressing concern that 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. I think his concern is well founded and his comments entirelyappropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude,this does not mean that they have misconceived what happened to them and who did it.

In recent years we have adopted a much morebenign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirabledevelopment. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard ofthe "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. (

b) R. v W. (R.) (SCC), [1992] 2 SCR 122 ... I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidenceof children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified inlegislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, therequirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which

prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed ... But it does revokethe assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than theevidence of adults. ... The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children.

One finds emerging a new sensitivity to the peculiar perspectives of children.Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.). ... ... it seems to me that he 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 and I do not read his reasons as suggesting that the standard of proofmust be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as acontradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concernis well founded and his comments entirely appropriate.

While children may not be able to recount precise details and communicate thewhen and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. Inrecent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking andcorroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before the courts must, ofcourse, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of youngchildren. As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence ofchildren should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protecting the liberty ofthe accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt,whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from theperspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesseswhich characterize the evidence offered in the particular case....

Against this background, I turn to a more particular consideration of the Court of Appeal's treatment of the evidence in this case. First,the Court referred to the fact that "there was really no confirmatory evidence". This suggests that the Court [page 135] may have beenapplying the old rule that the evidence of a child could not found a conviction unless it was confirmed or corroborated by independentevidence.

It may be that in considering the whole of the evidence in accordance with the Yebes test, a court of appeal will take intoaccount, along with other factors, the presence or absence of confirmatory evidence. So the reference to lack of confirmatory evidence isnot in itself an error of law. But standing as it does as a bald proposition unrelated to a detailed examination of the evidence, it doessupport the submission that the Court of Appeal was treating the evidence of the children as being inherently less reliable than adultevidence might be. ...

It went too far, however, in finding lacunae in the evidence which did not exist and in applying too critical an approach to theevidence, an approach which appears to have placed insufficient weight on the trial judge's findings of credibility, influenced as theCourt of Appeal appears to have been by the old stereotypes relating to the inherent unreliability of children's evidence and the "normal"behaviour of victims of sexual abuse. (

c) R. v F. (C.C.), (SCC), [1997] 3 SCR 1183 47 ... However. the fact that the video is contradicted in cross-examination does not necessarily mean that the video is wrong orunreliable. The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliablethan the evidence elicited at trial. In R. v. B. (G.), 1990 CanLll 7308 (SCC), [199012 S.C.R. 30, at p. 55, Wilson J. stated that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. . ..

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this doesnot mean that they have misconceived what happened to them and who did it. 48 She concluded that, although each witness’ credibility must be assessed, the standard which would be applied to an adult’sevidence is not always appropriate in assessing the credibility of young children. This approach to the evidence of children was reiteratedin R. v. W. (R.), (SCC), 1992 CanLll 56 (SCC), [1992] 2 S.C.R. 122, at pp. 132-34.

There McLachlin J. acknowledgedthat the peculiar perspectives of children can affect their recollection of events and that the presence of inconsistencies, especially thoserelated to peripheral matters, should be assessed in context. A skilful cross—examination is almost certain to confuse a child, even if sheis telling the truth. That confusion can lead to inconsistencies in her testimony. Although the trier of fact must be wary of any evidencewhich has been contradicted, this is a matter which goes to the weight which should be attached to the videotape and not to itsadmissibility.

In the case at bar, Lane J. properly viewed the inconsistencies as a matter going to weight. She applied the principles from B. (G.), supra,and W. (R.), supra, in holding that the minor inconsistencies regarding peripheral details were not of “great significance” and that theyshould not preclude her from relying on the videotaped statement as true. Furthermore, she found that the complainant’s evidence—in—chief and cross—examination were consistent with the evidence she gave in her videotaped statement with respect to the essentialelements of the assault. As Lane J. noted: ...

I am satisfied beyond a reasonable doubt as to the essence of her complaint. As I have said before, she was totally consistent withrespect to the essential details and that consistency remained notwithstanding a very skilled cross-examination. Lane J. was entitled to prefer the videotaped evidence to that elicited on cross-examination. Her decision was not unreasonable andshould not be disturbed.

[32] The Complainant was 15 at the time of the alleged event but is testifying as an 18 year old at trial. Recently our Court ofAppeal in R v ADG, 2015 ABCA 149 discussed some of these same principles. The children who were allegedly sexually assaultedwhen they were approximately 7 and 8 years old, and on my understanding of the facts, were adults by the time they testified.

Theirevidence at trial was still considered within these Supreme Court of Canada principles as is evident from paras 37 to 39 of ADG: 37 The Crown also argues that although the trial judge stated the correct legal principles for evaluating the evidence of childwitnesses, he then misapplied those principles. The concern arises from the following passages in the trial judge's reasons in which hecorrectly states the law, but then seems to ignore that law in his assessment of the complainant's evidence (at paras 157 and 160): The Supreme Court of Canada in B(

G) said, while recognizing that courts must carefully assess the credibility of child witnesses, "aflaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult." Aswell, the Supreme Court of Canada in W(

R) at para 29, recognized that some inconsistencies are minor and some are more significant.As well, it said that "many of the inconsistencies may be explained by reference to the fact that a young child might not be payingparticular attention" to certain details. ... There were inconsistencies with some of the evidence of the complainants, such as their description of the places where the allegedevents occurred, and how they occurred. This Court is not so much concerned with these details, but is more concerned with whether thealleged events happened. The accused has explained some of these inconsistencies.

What is of more concern to this Court is some of themore innocuous things that the complainants could not remember, such as when they lived at certain places. Granted, these childrenmoved around several times, but all of them found it difficult to temporally place themselves in specific places, even when asked to putthe events into a context, such as where they were going to school at the time (emphasis added). 38 The Crown contends that the trial judge focused on peripheral matters, contrary to the legal principles applicable to evaluatingevidence about events that occurred when the witness was a child.

The Supreme Court has recognized that there may often beunderstandable inaccuracies in such evidence. Since children experience the world differently than adults, it is hardly surprising that theymay be confused about certain details, such as time and place, which are important to adults: W(

R) at 133. Children are also prone toforget details with the passage of time: R v F(CC), (SCC), [1997] 3 SCR 1183 at para 41. The evidence of childrenshould not be held to the same exacting standards as adults: R v B(G), (SCC), [1990] 2 SCR 30 at 54-55. Regardingevidence about events that occurred in childhood, any inconsistencies, particularly those related to peripheral matters, should beconsidered in the context of the age of the witness at the time of the events: W(

R) at 134. 39 As evident in the above excerpt of the reasons for decision, although the trial judge stated the correct legal principles for assessingthe evidence of children, he did not apply them. He stated that he was not concerned about the details, such as a description of the placeswhere the events occurred or how they occurred. Yet he nonetheless found the complainants less credible for failing to recall 'innocuousthings', such as precisely when they lived at certain places or where they went to school at specific times.

Although the complainantswere young adults at the time of trial, their recollection of specific details regarding their lives as children should not have weighed soheavily in the trial judge's assessment of their credibility. This error also may well have affected the outcome. Defence Arguments Credibility of the Complainant [33] In his final submissions, counsel for the Accused raises a number of arguments with respect why the Complainant’s evidenceshould not be believed, or at least should raise a reasonable doubt as to the Accused’s guilt.

Counsel for the Accused characterizes theComplainant as being argumentative, evasive, digressive, oppositionally defiant and non-responsive. [34] To the contrary however, I conclude that the Complainant gave her evidence in a very responsive and sincere manner. TheComplainant held up well under a gruelling day and a half cross-examination, and spent a total of two days on the witness stand talkingabout events that were extremely difficult for her. She testified without a support person, and without a screen, both of which she maywell have been entitled to under the provisions of

Section 486.1(1), and

Section 486.2(1). The Complainant’s ability to testify in such amanner formed part of the September 2015 Agreed Statement of Facts, but defence counsel voiced some concern about this since theComplainant was now 18. This matter became academic when the Complainant proceeded on her own violation to testify without ascreen and without a support person. [35] It must be borne in mind that the Complainant is still only 18 years of age at the time of trial, and she does not have a fullunderstanding of the relevance and importance of many of the questions she was asked during her two days on the stand.

Frankly it wasdifficult for the Court to understand exactly the relevance and purpose of some of the questions being asked, but at least the Courtrecognizes that Defence Counsel is under duty to represent the Accused vigorously given his jeopardy.

The Complainant would also notbe aware of defence counsel’s obligation under the anti-ambush rule of evidence from Browne v Dunn, (1893) 1893 CanLII 65(FOREP), 6 R. 67, the famous British House of Lords decision with respect to rules of cross-examination. [36] Given all of this background, I find that the Complainant was respectful and diligent throughout her two days of trialevidence, and only had to be warned once to answer Defence Counsel’s questions.

The Complainant readily complied with the Court’sdirection to be responsive to Defence Counsel’s one disputed question, notwithstanding her obvious belief that that entire area ofquestioning was totally irrelevant to the proceedings. The Complainant also apologized to the Court for her minor outburst.

I alsoacknowledge Crown counsel for allowing defence counsel to pursue all his many lines of questioning with few objections. [37] Defence Counsel points out numerous inconsistencies both internally and externally in the Complainants evidence, concludingthat she is simply not credible, or cannot remember what happened and is adding to her memory to fill in the gaps. However I find theComplainant’s memory of events to be reasonably good, given her impairment that evening. The Complaint described the Accused,

where she was, what she was doing, and how the Accused violated her. She readily acknowledged the gaps she had in her memory. [ 38 ] Defence Counsel points out that the Complainant exaggerated or minimized certain events she didn’t like being asked about such as claiming to have used marijuana previously but having never used hard drugs, or never having been AWOL from her group home until the night in question. I agree that the Complainant may have been more familiar with drugs than she acknowledged.

The Complainant’s evidence was also contradicted somewhat by one of the group home workers where the Complainant lived, who did testify that the Complainant had had problems in the past with non-specified drugs and alcohol. The group home worker also confirmed that the Complainant had previously been AWOL, and she had had some other difficulties in complying with the rules and regulations of the group home. [ 39 ] I conclude however that this does represent a meaningful attack on the Complainant’s overall credibility.

The Complainant’s claim that she had never previously had any problems with the group home can be explained in terms of how one defines, as an 18 year old, having problems at home or being AWOL. It does not in my respectful conclusion represent any major credibility issue, but rather a misunderstanding as to what the meaning of previous problems, or being AWOL from the group home means.

What may be being AWOL or a problem to the group home staff, may not necessarily mean the same thing for a teenager, which is what the three decisions from the Supreme Court of Canada quoted from earlier discuss. [ 40 ] In a similar vein, I note that the Complainant was very forthright in her evidence when asked whether she had any previous problems with the Police. The Complainant readily acknowledged that she had previously had dealings with the Police.

The Complainant testified she did not wish to blow up the events of September 10, 2013 further by returning home in a police vehicle, which is the reason she asked to be dropped off. The evidence from the group home workers confirmed that the Complainant would lose some of her privileges there for being AWOL.

Rather than being as the Defence puts it, a reason to make up a convoluted story about what happened on the night in question, I find the Complainants evidence in this regard to be quite reasonable and understandable for a teenager. [ 41 ] Additionally Defence Counsel points out that there are many gaps in the Complainant’s evidence with respect to her specific sexual assault and sexual interference allegations. The Complainant does not remember how her clothes came off, and the sequence of events that took place leading to the alleged sexual assault and sexual interference.

While this is generally correct, the reality is that the Complainant was already somewhat intoxicated from consuming alcohol and smoking marijuana in the west end park earlier that day, although the investigating officers from that west end park incident thought that the Complainant was coherent when they dropped her off on Whyte Avenue. Following her encounter with the Accused however she consumed more alcohol and smoked and snorted crystal meth, which is obviously a more powerful prohibited drug.

She actually forthrightly testified she craved for more meth after first consuming it that night, which is why she stayed so she could use more meth. Accordingly it is understandable given her significant impairment that she does not remember how exactly her clothes came off and the exact sequence of events that took place during the alleged sexual assault/sexual interference. [ 42 ] Defence Counsel also points out that in neither of the two

Section 715.1 statements does the Complainant give her story under oath or after a promise to tell the truth. Detective Fischer was the officer conducting both interviews, and she testified that it is not her practise to make child complainants give their statement under oath or on a promise to tell the truth. This to me seems to be in line with the way Courts now treat child witnesses, and the changes to the Canada Evidence Act with respect to receiving evidence from children.

There is also a specific reference in the first s 715(1) statement given the day after the alleged events on page 4 at line 7-8 where the Complainant is told by the Detective to just talk about the truth. [ 43 ] It is clear to me from the trial evidence of the Complainant, as well as the two

Section 715.1 statements in question, that this Complainant is well aware of the requirement to tell the truth to the best of her ability. The fact then that neither of the two

Section 715.1 statements were given under oath or with a promise to tell the truth is immaterial. [ 44 ] Defence Counsel also points out that it was not until the second

Section 715.1 statement given several months after the event that the Complainant told the Detective about the Accused’s hands being inside her vagina. While it is correct that that allegation does not appear in the September 11, 2013 statement, and is not spoken of until the April 3, 2014 statement, this too is understandable given that the Complainant was obviously trying to sort out a number of the details of the night in question. This she made clear in the first statement when she said at page 4 ling 26 continuing on page 5 line 1: While like I don’t remember every little detail because I was fucked.

So I am just going to sum it the best I can. [ 45 ] This to me does not mean as Defence Counsel asserts that she is making things up as time goes on, rather it is that she is remembering things as time goes on. At trial the Complainant further elaborated on this topic stating that she was aware of digital penetration as part of sexual activity, but that this Accused was inserting one or both of his fists into her. The SART nurse observed and testified about what she found in her experience to be the unusual laceration in the Complainant’s anus.

Accordingly, whatever the timing of the Complainant’s evidence in this regard, the Court has other significant confirmatory evidence. [ 46 ] Defence Counsel also comments about how the Complainant cannot tell the Court whether the Accused’s penis was in her vagina or in her anus.

However I conclude the important part of this evidence is not necessarily whether the penis was in the vagina or in her anus, but rather the Complainant’s evidence that the Accused was masturbating himself attempting to get an erection, putting lotion on himself, and trying to penetrate the Complainant either vaginally or through the anus, or both. [ 47 ] In addition to the Complainant’s evidence, the Court also has the SART nurse’s observations and the examination result of a 3 to 4 cm laceration to the Complainant’s labia, and a 2 to 3 cm laceration to her anus; and the Court has the DNA results which link the Accused to the Complainant in several highly probable areas.

The DNA evidence results confirm that the DNA of the Accused and the Complainant was found inside the crotch area of the jeans worn by the Accused on the night in question, and the Accused’s DNA was found on the Complainant’s breast swab. This latter result also confirmed the Complainant’s evidence that the Accused was kissing and sucking her breasts aggressively which the Complainant described as the Accused “fucking her breasts”. As such, I am able to find that the Complainant was sexually violated on her breasts, in her vagina and her anus by the Accused. The DNA Evidence

[ 48 ] Defence counsel also raises a number of concerns about the DNA results, none of these concerns raise a reasonable doubt in my mind. The profile from the inside crotch area of the Accused’s jeans was a full profile, from the Accused, not a partial profile.

When the profile from the Accused’s later blood sample was compared to the known breast swab sample from the Complainant, the estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile was more than 310 billion. [ 49 ] Defence counsel points out that there are other problems with the DNA testing, and that the DNA expert’s evidence was unclear given the DNA expert’s cross-examination.

While defence counsel raises a number of issues as to possible contamination of the samples, I do not see any basis in the evidence presented at trial for any contamination.

There are also admissions made with respect to continuity made by the Accused in the Agreed Statement of Facts. [ 50 ] As for questions raised by defence counsel as to how the DNA that was found got there, whether it was transferred DNA, and how one donor sample can overwhelm another donor’s sample, none of those questions raises a reasonable doubt in my mind as to the overall results given the huge probability matching the Accused’s DNA with that of the Complainant.

There is no evidence that I can base any reasonable doubt that somehow the Accused’s DNA was transferred on to the inside of his jeans that he was wearing on the night in question.

While I recognize there is a limitation as to when the DNA got on the inside groin area of the Accused’s jeans that he was wearing on the night in question, and while I recognize that DNA can be transferred, there is no speculation that I can engage in that would lead to having a reasonable doubt about the Accused’s guilt. [ 51 ] Defence counsel also notes that a number of other items of interest from the hotel room were never submitted for DNA analysis, such as blood on the bed mattress and a bloodied sheet.

The DNA expert’s testimony established how complex a process DNA testing involves, and I assume how costly it is. Seven samples were already submitted for testing so while this investigation may not have been perfect, the evidence submitted for analysis seems reasonable. Given all the evidence, it would be speculative to believe that more samples would have yielded anything important. The Defence Case David Gesselman (aka “Shrek”) [ 52 ] Defence counsel also relies heavily on the only evidence the Accused called in these proceedings from the person known on the street as Shrek.

If Shrek’s evidence were to be believed, or at least raise reasonable doubt, that nothing happened whatsoever of a sexual nature between the Accused and the Complainant on the night in question because he was there with them at all material times, the Accused should be found not guilty. [ 53 ] There are a number of problems with Shrek’s evidence however. Shrek had not slept for approximately two to three weeks prior to the night in question, and in his own words, he was “fucked up” even before allegedly meeting the Complainant at the Mac’s store near the hotel.

Shrek has been on the street since he was 13 years of age, and has been a long term drug addict. In his evidence he has been abused sexually and physically from a young age as a child. Shrek also testified that just prior to meeting the Complainant at the Mac’s store near the hotel, he had been robbed and beaten. [ 54 ] Yet with respect to the night in question, he did not consider any of the events particularly memorable or unusual.

Shrek was also impaired by drugs and alcohol at all material times on September 10, 2013. [ 55 ] Furthermore Shrek was interviewed in December 2013 by Detective Fisher, and in that videotaped interview at the Remand Centre, he indicated that he had never even been in the hotel room in question at the Strathcona Hotel, and had parted ways with the Complainant shortly after meeting her at the Mac’s Convenience Store.

Shrek’s memory obviously was better in December 2013, than it is now in September 2016 at trial. [ 56 ] Shrek also claims that upon suddenly meeting up with the Complainant at the Mac’s store briefly that evening, the Complainant asked to buy drugs from him. Shred was very reluctant to sell drugs to the Complainant because the Complainant was totally unknown to him, she could not identify any of his drug associates, and she didn’t appear to be a street person. Shrek however sells to her and says that the Complainant paid him $20 for the drugs.

This is not credible because all the other evidence I have heard from the trial clearly establishes that the Complainant in fact had no money at the time, and only had a bus pass by which she intended to get home. [ 57 ] Shrek also testified that upon suddenly meeting the Complainant on Whyte Avenue, the Complainant had told him that she had just been raped earlier that day in the west end, a rather unusual spontaneous admission coming from one stranger given to another stranger. [ 58 ] Not only was that alleged statement of the Complainant not admitted for its truth, the Complainant denied making any such statement, and Cst.

Maeda noticed no injuries on the Complainant after his investigation at the west end park. [ 59 ] I find that Shrek’s revelation that the Complainant told him she had been raped occurred earlier in the west end to have no credibility. I find that Cst. Maeda, a two year member of the EPS at the time, would not have simply left the west end park without investigating a possible rape further, and simply drove the Complainant to Whyte Avenue at 1:00 a.m. [ 60 ] Shrek is also attempting to assist the Accused who he considers to be a friend.

Shrek testified that the night in question was the first time he had dealt with the Accused, but later changed that evidence to the first night that he had “partied” with the Accused. The Accused and Shrek are obviously previously acquainted with each other, and based on the reasons that I have given, I find no ability to rely on any of Shrek’s evidence about the events that occurred on the night in question. [ 61 ] In conclusion, I find that Shrek’s evidence is basically an attempt by him to reconstruct an unmemorable and normal night for

him on the street in which he was already impaired by drugs and alcohol, after he himself had just been robbed, all made up or reconstructed to help his friend the Accused.

Conclusion [ 62 ] Accordingly, I conclude that the SART examination, and the DNA results found in Exhibit 7, along with the s. 715.1 videotape statements, and the Complainant’s trial evidence prove beyond a reasonable doubt that the Accused had intimate sexual contact with the Complainant on the night in question, and is sufficient to convict the Accused on both Counts 1 and 2. [ 63 ] Accordingly, I find the Accused guilty as charged on Counts 1, 2 and 3 - sexual assault, sexual interference, and a breach of recognizance respectively. Heard between 12 th day of September and the 20 th day of September, 2016.

Dated at the City of Edmonton, Alberta this 23 rd day of September, 2016. Donald Lee J.C.Q.B.A. Appearances: Shelly Bykewich Crown Prosecutor's Office for the Crown Derek Anderson Barr Picard Knisley for the Accused