R v Cutcher, 2016 ABQB 655

Court of Queen’s Bench of Alberta Citation: R v Cutcher, 2016 ABQB 655 Date: 20161122 Docket: 140079245Q2 Registry: Edmonton Between: Her Majesty the Queen - and - Allan Walter Cutcher Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] The indictment, as amended at trial, charges Allan Walter Cutcher as follows: 1.

That he, between the 8 th day of December, 1979, and the 4 th day of January, 1983, both dates inclusive, at or near Edmonton, Alberta, did commit the offence of indecent assault on a female, to wit: [AB], contrary to section 149(1) of the Criminal Code of Canada . 2. That he, between the 4 th day of January, 1983 and the 8 th day of December, 1988, both dates inclusive, at or near Edmonton, Alberta, did commit the offence of sexual assault on [AB], contrary to

section 246.1 of the Criminal Code of Canada . 3. That he, between the 12 th day of December 1988, and the 30 th day of December 1993, both dates inclusive, at or near Edmonton, Alberta, did commit the offence of sexual assault on, [AB], contrary to

section 271 of the Criminal Code of Canada . [ 2 ] The complainant, AB, and Mr. Cutcher, both testified. There was second Crown witness, Karon Little, AB’s mother. There were two other defence witnesses, CD, AB’s brother, and Bonnie Lee Hebert, a friend of Mr. Cutcher. I will discuss the central evidence in detail below. [ 3 ] AB’s evidence identified the actions on Mr. Cutcher’s part which the Crown alleges constitute the offences charged. In his evidence Mr. Cutcher denied each of those actions.

[ 4 ] I have considered Mr. Cutcher’s evidence. I am not prepared to say that I believe it or that it leaves me with a reasonable doubt as to his guilt. I have also considered AB’s evidence in the context of all of the evidence. I am similarly not prepared to say that it satisfies me beyond a reasonable doubt of Mr. Cutcher’s guilt. Having considered all of the evidence as carefully as I can, I simply do not know whom to believe. Accordingly, I have a reasonable doubt in respect of each of the three counts. I must therefore find Mr. Cutcher not guilty of each count.

Family Relations [ 5 ] The complainant, AB, is 40 years old. She was born on December 8, 1975. She testified that from the time she was a baby until she was 16 years old she lived with her mother, Ms. Little, and her brother, CD, who is one year younger than her. They lived in various residences in Edmonton, Alberta. [ 6 ] During much of this time, Ms. Little was in a relationship with Mr. Cutcher. Mr. Cutcher sometimes lived with Ms. Little, AB, and CD. AB referred to Mr. Cutcher in her testimony as her mother’s boyfriend and her “stepdad”. [ 7 ] AB, Ms. Little, CD and Mr.

Cutcher each testified that theirs was not a happy home. [ 8 ] AB testified that practically from the time Mr. Cutcher first moved in with them, he and Ms. Little would fight. She associated the fighting with their use of alcohol. She testified that every time Mr. Cutcher and Ms. Little got paid, there would be lots of drinking, partying and fights. There would be physical altercations between Mr. Cutcher and Ms. Little. The police were frequently called. [ 9 ] Mr. Cutcher and CD testified that there was also significant drug use. Ms. Little did not acknowledge drug use. [ 10 ] AB and Ms.

Little testified that AB and CD were the victims of significant physical abuse at the hands of both Ms. Little and Mr. Cutcher. CD testified that there was much abuse in the home but did not elaborate. Mr. Cutcher acknowledged that he “ruled the house with an iron fist.” [ 11 ] Ms. Little and AB also testified that Mr. Cutcher physically abused Ms. Little. Ms. Little testified that she and her children would “walk on egg shells” for fear of offending Mr.

Cutcher and causing him to beat them. [ 12 ] The physical abuse is not the subject matter of any of the charges before the court. [ 13 ] The relationship between AB, when she was a teenager, and her mother, Ms. Little, was very poor. They did not get along. AB was of the view that Ms. Little favoured CD. [ 14 ] The sexual abuse which is the subject of the charges before the court is alleged to have occurred throughout the last 12 years that AB lived with her mother and Mr. Cutcher. The first sexual abuse occurred, she testified, when she was four years old. The last when she was about 16.

She left the home to live with her boyfriend when she was 16. Count 1 – Indecent Assault between December 8, 1979 and January 4, 1983 [ 15 ] AB testified that she was sexually abused by Mr. Cutcher when the family lived at Windsor Court which, she testified, was when she was, “Four, because I was going into Grade 1.” She testified that the family lived in that residence for about 2 years, until she went into Grade 3. She testified that the incidents which give rise to Count 1 occurred during that time. [ 16 ] AB described the actions of Mr.

Cutcher which give rise to Count 1 as follows: - Hot baths, being touched in the tub on my vagina; Ivory soap. Those are the main ones that stick out the most there. - I was made to take hot baths so that I was clean, and he would wash me with bars of Ivory soap. - . . . it wasn’t normal cleaning. - He would rub my vagina with the soap and get deeper than he was supposed to, to the point where it would burn – burn me on the inside. AB did not recall that Mr. Cutcher said anything while touching her in this way. She did not recall how often Mr. Cutcher bathed her. [ 17 ] In cross-examination, AB testified that Mr.

Cutcher’s finger had not gone completely into her vagina. He went “between my labia enough that the soap went up my clitoris and burned my clitoris.” [ 18 ] She testified that this occurred in the afternoon, after school and that her brother CD would have either been in daycare, or in the living room watching TV, or out with an uncle. She acknowledged in cross-examination that her evidence as to where CD was when she was indecently assaulted was a guess. [ 19 ] Ms. Little, AB’s mother, testified that in the two years that the family lived at Windsor Court, AB was either 5 and 6 or 6 and 7. Mr.

Cutcher lived with them “on and off”. Ms. Little was going to hairdressing school from 8 a.m. to 4 p.m. AB and CD would go to daycare. Either Ms. Little or Mr. Cutcher would pick them up. She did not recall whether or not there were periods of time when Mr. Cutcher would have been alone with the children. Ms. Little was not asked whether there were occasions when Mr. Cutcher bathed AB when the family lived at the Windsor Court residence or at all. [ 20 ] Mr. Cutcher denied that he had any sexual encounter with AB. In cross-examination, he testified that once or twice he helped bathe AB and her brother.

Drugging, Video Recording and Sexual Assaulting Ms. Little [ 21 ] AB testified that when she was 9 or 10 years old (so between December 8, 1984 and December 8, 1986) Mr. Cutcher would take sleeping pills he either got from his doctor or from his friends, crush them up and put them into Ms. Little’s drinks. When Ms. Little passed out, Mr. Cutcher and AB would videotape AB nursing on Ms. Little’s breasts or playing with Ms. Little’s vagina. They would also videotape Mr. Cutcher having sexual intercourse with Ms. Little or playing with her vagina. Mr.

Cutcher kept the videos for his personal pleasure. [ 22 ] AB testified that in these incidents, nothing was done to her, “I was mostly just videotaping and performing the acts.” These incidents would occur, according to AB’s testimony, late at night after Mr. Cutcher and Ms. Little had been drinking since early in the day, and after CD, AB’s brother, was in bed. [ 23 ] Asked why she participated in these activities, AB answered, “I was an abused kid. I had no choice.” She testified as well that her participation was a reward, “. . . if I was to do those things for him, I would get to be a kid.

I could go out and play with my friends, or I would get a treat, or I would not get beat up.” [ 24 ] In cross-examination, AB testified that such incidents would happen five times a year from the time AB was 8 to the time she was 16, that is for 8 years. She agreed that would be about 50 times. [ 25 ] Ms. Little also testified that on several occasions, Mr. Cutcher video recorded Ms. Little and himself having sexual relations. He used an old VCR camera that he rented from 7-Eleven and never returned. [ 26 ] Ms. Little was not asked whether there was any occasion when she had been drugged by Mr.

Cutcher and AB, then sexually assaulted by one of them while the other video recorded the activity. She did, however, volunteer during cross-examination, when asked if she used prescription pills, that she remembered waking up and “feeling crappy” for three days and not knowing why. In re- examination, she elaborated that a few times when she woke up she would feel like she had been drinking when she had not been and would not know why. [ 27 ] The Crown acknowledged in argument that as these incidents did not involve any touching by Mr. Cutcher of AB, it is not the Crown’s theory that Mr.

Cutcher’s actions in relation to this activity constitutes one of the offences with which he is charged. Count 2 – Sexual Assault between January 4, 1983 and December 8, 1988 [ 28 ] AB testified that later, when she was 11 or 12 years old (so between December 8, 1986 and December 8, 1988), “I used to have to nurse on him while he masturbated.” [ 29 ] She testified that the family’s television was in bedroom used by her mother and Mr. Cutcher. When no one but AB and Mr. Cutcher were present, AB would lay on the bed with Mr. Cutcher while they watched TV. She said, “. . .

I would just cuddle up beside him and rub his chest, and if nobody was home, we would lay there, and I would nurse while he masturbated.” [ 30 ] Both in examination in chief and in cross-examination, AB testified that on one occasion when she was nursing on Mr. Cutcher’s nipples, her brother, CD, walked into the room. CD testified that he never saw any sexual interaction between Mr. Cutcher and AB. [ 31 ] Ms. Little testified that there were times when Mr. Cutcher was living with her and her children that he would watch the children when Ms. Little was working evenings. [ 32 ] Mr.

Cutcher, in his testimony, denied that he ever video recorded AB while she was naked, that he ever drugged Ms. Little, that he ever directed AB to sexually assault Ms. Little, that he ever directed AB to suck on his nipples, and that he ever masturbated in AB’s presence. Family moves to Mr. Cutcher’s mother’s residence [ 33 ] AB testified that when she was 12 or 13 (so between December 8, 1987 and December 8, 1989) the family moved into the house where Mr. Cutcher’s mother lived. Mr. Cutcher’s mother had had a stroke and was partially paralyzed. The family moved into the house to take care of her.

AB ceased to live with her mother, brother and Mr. Cutcher in the April following her 16 th birthday, April 1992. [ 34 ] Mr. Cutcher had had a room in the basement of the house all along even when he was spending significant time in the series of residences where Ms. Little and her children made their home. This, as I understood the evidence, became Mr. Cutcher and Ms. Little’s room. AB and CD and Mr. Cutcher’s mother each had a room on the main floor of the house. [ 35 ] AB testified that while she lived at this residence, the incidents where she and Mr. Cutcher drugged Ms.

Little and, when she had passed out, in turns sexually assault her while the other video recorded the activity, continued as before. Count 3 – Sexual Assault between December 12, 1988 and December 30, 1993 [ 36 ] AB testified that while the family lived in Mr. Cutcher’s mother’s residence, in order to be allowed by Mr. Cutcher to engage in the routine activities of a teenager (for example, go to a friend’s for a sleep over or join a volleyball or basketball team in junior high school) AB would have to perform a sexual act on Mr.

Cutcher or promise to do so, or promise to participate in the drugging and sexual abuse of Ms. Little. [ 37 ] The sexual activity in which Mr. Cutcher required AB to participate in this context included performing fellatio on him, nursing on his nipple while he masturbated, and watching pornographic movies. AB testified that she would be required to perform oral

sex on Mr. Cutcher three times a month. [ 38 ] AB also testified that while the family lived in Mr. Cutcher’s mother’s residence, “[Mr. Cutcher] would lay on top of me and rub his penis against my clitoris and ejaculate on me.” [ 39 ] Further, she testified, “There was one time when I was 15 – I had just turned 15, or I – yeah, I believe I was 15. They came home from a party; he was drunk. I woke to him penetrating me . . . His penis was in my vagina.” She testified that this was the only time that Mr. Cutcher had vaginal intercourse with her. She testified that around that time she got pregnant, and Mr.

Cutcher and Ms. Little made her have an abortion. She believed that Mr. Cutcher was the father. [ 40 ] Neither Ms. Little nor Mr. Cutcher was asked, either in examination in chief or in cross-examination, whether AB was pregnant when she was 15 or whether the pregnancy was aborted or whether they had made her have an abortion. Mr. Cutcher testified that he is sterile – incapable of impregnating a female.

He testified that he consulted a doctor about his sterility but no medical evidence was offered at trial. [ 41 ] AB acknowledged in cross-examination that when, in 2012 , she gave the statement to police which resulted in the current charges, she wrote that vaginal penetration occurred before she was 13, “Actual penetration happened before I was 13.” When challenged in cross-examination on the basis of the inconsistency between this and her trial testimony, she testified that her police statement was wrong. Her trial testimony was correct. Mr.

Cutcher denied all of the conduct which the Crown alleges constitutes the offence charged in Count 3. Movie projector, Polaroid camera, video and photograph storage [ 42 ] AB testified that Mr. Cutcher used a projection system, a reel-to-reel system to show her pornographic movies. She described a large projector, “like the kind they used to use at school to show us movies.” Mr. Cutcher kept the projector in his closet. Ms. Little testified that she does not remember there being a projector in the house. Mr. Cutcher testified that he rented a projector on one occasion to show a film at a stagette Ms.

Little hosted for her best friend. He has never owned a projector. He acknowledged that he watched pornography. He denied that he ever watched pornography with AB. [ 43 ] AB testified that in addition to video recordings, Mr. Cutcher would take Polaroid pictures of her when she was naked. He would also take Polaroid pictures of Ms. Little when, having been drugged, she was passed out and naked. Ms. Little testified that she was not aware of Mr. Cutcher having had any camera other than the video camera.

She was not aware that any still photos he had taken. [ 44 ] AB testified that there was a small box, about the size of the Martin’s Criminal Code which she could see on the counsel table as she testified. Mr. Cutcher kept it by his bedside table or under the bed. Mr. Cutcher showed AB that he put the video tape of their sexual assault of Ms. Little and pictures that Mr. Cutcher had taken of AB when she was naked in the box. She never herself accessed the box for fear of being beaten by Mr. Cutcher. [ 45 ] Ms. Little testified that there was a box of videos – mostly videos recorded off the television.

She did not know what had become of the videos Mr. Cutcher took, with her consent, of their (her and Mr. Cutcher’

s) sexual relations. At the time that Ms. Little and Mr. Cutcher separated she tried to find the videos he had taken of their sexual relations. She was in a hurry but she spent 2 or 3 hours looking for the videos. She did not find them. [ 46 ] Mr. Cutcher testified that videos were kept in a milk crate. All members of the family accessed it. It was not clear in his evidence that this is where he kept the videos he took of sexual relations between himself and Ms. Little. Those videos, he testified, he kept for a while but when he and Ms. Little separated, they were gone.

AB’s allegations of sexual abuse at age 14 – AB at a Group Home [ 47 ] AB testified that when she was 14 (so between December 8, 1989 and December 8, 1990) she ran away from home. She stayed with various friends before she was questioned by the police and taken to a group home. [ 48 ] In her examination in chief, she testified that she told the police “what she wanted to tell them”. In cross-examination she elaborated that she told the police about having been abused growing up.

When her memory was refreshed by notes made by someone (who was not identified in the evidence) at the time of her report, she agreed that she had at the time reported that Mr. Cutcher was having sexual intercourse with her on a monthly basis. She testified that at the time she would not have distinguished between sexual intercourse and fellatio. [ 49 ] She testified she was in the group home for four months, maybe less. During that time, she testified, her brother, CD, came to see her. He had been physically beat up. He had a black eye.

He said he did not know what she had said or done, but things had become worse for him at home in her absence. He told her she should take back what she said and come home. She did as he suggested. She did so because he asked her to and also because the police officer to whom she had reported the abuse was accusing her of lying. [ 50 ] She recanted her story of the physical assaults and sexual abuse.

She testified that she recanted, “. . . so I could go home and take care of my brother and my mom.” At the time she explained her recantation by saying that she had lied and made up the allegations of sexual abuse to get even with her parents because they did not like her boyfriend. That was, she testified, the only excuse for lying that she could think of. [ 51 ] CD testified that he saw AB almost daily during the time she was at the group home. He was selling drugs at her school. He testified that he did not ask her to recant her allegations – he did not know she had made any allegations.

He was not asked whether the treatment he received from Mr. Cutcher was any different when she was away than it had been when she was in the home. He was not asked whether, when AB was in the group home, Mr. Cutcher beat him and gave him a black eye. He accepted that he probably asked AB to come home because he missed her. He was happy when she came home.

[ 52 ] AB testified that while she was at the group home, she did not see her mother, though they may have talked on the phone. In cross-examination, she acknowledged that her evidence at the preliminary inquiry had been different. At the preliminary inquiry, she testified that she had seen her mother once when she was at the group home. When this contradiction was put to her, she adopted the preliminary inquiry evidence and acknowledged that her initial trial evidence was not accurate on that point.

She testified that she had a specific memory that while she was staying at the group home she saw her mother at a restaurant, Fast Eddie’s, and that they went there for fries. [ 53 ] Ms. Little testified that AB was at the group home for a couple of weeks. During that time Mr. Cutcher was more physically violent than when AB was at home. The violence, she testified, was directed to her. She did not testify that CD was beaten, though, she said, CD witnessed Mr. Cutcher beating Ms. Little. Ms.

Little testified in examination in chief that she was not aware of the reason AB had left the family home – that AB alleged Mr. Cutcher had sexually abused her. In cross-examination, Ms. Little acknowledged that she was made aware of AB’s allegation concerning sexual abuse by Mr. Cutcher at the time AB was in the group home. She had remembered that only after her examination in chief was finished. [ 54 ] Mr. Cutcher testified that AB was in the group home for 9 days. He denied having assaulted CD during the time AB was in the group home. He did not give CD a black eye. He testified that he and Ms.

Little were told at the time that AB was taken to a group home because of her allegation that Mr. Cutcher had sexually abused her. He said that allegation was withdrawn within a day of it having been made. AB returns to live in Mr. Cutcher’s home as an adult [ 55 ] When AB left her childhood home at age 16 she was pregnant by her boyfriend whom at some point became her husband. She and her husband had two children. They were together for about 11 years, until AB was almost 27, so sometime in 2002.

They lived in various places: with her husband’s sister; with his parents; and then on their own. [ 56 ] Towards the end of the time they were together, when AB was 22 (in about 1997), they (AB, her husband, and their two children aged 4 and 5 at the time) moved in with Mr. Cutcher. AB and her husband were, at that time, unable to support themselves financially. A few times AB and her husband left their children in Mr. Cutcher’s care. When AB and her husband separated in about 2002, AB and her children stayed in Mr. Cutcher’s home for about 4 months. During this time AB never left her children in Mr.

Cutcher’s care. [ 57 ] In cross-examination, AB was asked why she would move, with her children, into the home of the person who had abused her so horribly during her own childhood. She answered that she had told Mr. Cutcher that if he ever touched her child she would kill him even though that would result in her ending up in gaol herself. She acknowledged that in leaving her children in his care she was taking an awfully big risk. [ 58 ] After AB moved out of Mr. Cutcher’s residence in 2002, she maintained sporadic contact with him. They would exchange text messages.

She informed him of developments in her own children’s lives – for example when her daughter became a mother. When it was put to her that keeping her abuser so informed was curious, she responded that she did so out of vindictiveness – so that Mr. Cutcher would know what he was missing out on. Credibility of Ms. Little [ 59 ] I found Ms. Little not to be a credible witness. As she testified, it was clear that she holds an intense hatred for Mr. Cutcher. This coloured her evidence in a way that damaged its reliability. [ 60 ] As previously noted, Ms.

Little testified in examination in chief that she did not know at the time that AB was taken to a group home that AB had alleged that Mr. Cutcher had sexually abused her. In cross-examination, she acknowledged that she had been told of AB’s allegations at that time. That her memory on such a fundamental point could change so significantly in the course of her testimony damaged her credibility significantly. [ 61 ] Further, Ms.

Little testified that thinking back on the relevant time in the days immediately preceding the trial, particularly while she was waiting outside the court room prior to testifying, she remembered things that she now, many years after the event, realizes ought to have made her suspicious at the time. These included Mr. Cutcher being in AB’s room all the time, having her sit beside him all the time, coming out of her room when Ms. Little came home and AB being in Mr. Cutcher and Ms. Little’s bed when Ms. Little came home.

She recalled that once, in Millwoods, when she was a toddler, AB was crying that she was hurting in her vagina. [ 62 ] Ms. Little testified that she remembered these things just before testifying at trial because her trial testimony was the only thing she had on her mind. She was able to concentrate on it.

By contrast, at the time of the preliminary inquiry, at which she did not mention any of these things, her mind was somewhere else and, accordingly, she testified that AB was treated well at the relevant time. [ 63 ] Similarly, she told the police officer who investigated AB’s allegations in 2012 that she had not seen anything suspicious. [ 64 ] Then, at the conclusion of defence counsel’s cross-examination of Ms. Little on this point, she, somewhat confusingly, revised her evidence as to what she had seen at the relevant time.

She testified that she did not remember seeing any suspicious signs. [ 65 ] That she only thought of these things immediately before testifying, that she testified at the preliminary inquiry that AB had been treated well at the relevant time, that she told the police in 2012 that she had not seen anything suspicious, and that she appeared to revise her evidence regarding seeing suspicious things while testifying, in my view, significantly damaged her credibility. [ 66 ] Further, both her evidence about the things she said ought to have made her suspicious, and her evidence that she recalled a few times waking up and feeling as though she had been drunk when she had not been, seemed curiously tailored to support AB’s testimony.

In the later instance, this is particularly so because her testimony that she sometimes woke up and strangely felt ill – as if she had been drunk when she had not been, was volunteered in cross-examination, when she was asked only whether she used prescription

pills. [ 67 ] Ms. Little’s evidence does not give reliable support to the Crown’s case. Credibility of AB [ 68 ] I have similar concerns as to the reliability of AB’s evidence. [ 69 ] Part of that concern arises from her demeanour when she testified. She exhibited a palpable anger toward and hatred of Mr. Cutcher in her testimony. Anger and hatred of a person who had so horribly abused her, if that is what happened, might be expected and understandable even 25 years after the event. But AB’s anger and hatred does not appear to have existed for a significant portion of her adult life.

For a number of years, AB lived in Mr. Cutcher’s residence as an adult and maintained cordial communications with him for a time after she moved out. She testified that during that time she did not fear him. I cannot be confident in these circumstances that the anger and hatred displayed in her demeanour as she testified did not significantly affect the accuracy of her evidence. [ 70 ] The evidence concerning her recantation of her accusation of sexual abuse by Mr. Cutcher when she was 14 also fuels concern as to her reliability. She testified that CD came to her at the time she was staying in a group home.

He had a black eye. He had been beaten by Mr. Cutcher because of her allegations and requested that she recant. She did so to save him from further physical violence. At the time, she gave a reason for having made a false allegation which was consistent with circumstances to which both Ms. Little and Mr. Cutcher testified – that she made up the allegation in retaliation for Ms. Little and Mr. Cutcher’s rejection of her boyfriend. Ms. Little and Mr. Cutcher both testified that they had in fact rejected AB’s boyfriend at the time. None of the other witnesses, including CD, testified that CD had been beaten.

CD denied that he had asked AB to recant. In my view, that neither Ms. Little nor CD testified that CD had been beaten and the other circumstances surrounding the recantation, render it probable that AB invented her trial explanation for her recantation. In my view, this seriously damaged the general reliability of her evidence. [ 71 ] The Crown noted that AB presented her testimony with confidence. AB was certain of what had happened when she was 4 years old, 11 or 12 years old, and 14 or 15 years old, even though that was between 25 and 36 years ago.

The Crown observed that one might expect less certainty about the detail of events that happened that long ago and submitted that this confidence and certainty made her evidence credible. [ 72 ] In my view, the opposite conclusion has at least equal likelihood. Confidence and certainty about detail of events that occurred between 25 and 36 years ago could, as logically, suggest fabrication. Indeed, in the context of AB’s evidence regarding Mr.

Cutcher indecently assaulting her when bathing her at age 4, that her evidence included the detail it did particularly suggested fabrication in my view. [ 73 ] The Crown also noted that the unique and horrific nature of the abuse which, according to AB’s testimony, Mr. Cutcher inflicted upon her renders her evidence credible. The Crown submitted that such a unique and horrific story is unlikely to be fabricated: “Who could make this up? It would take some kind of mind to come up with these events.” This, it seems to me, suggests that AB’s evidence should be found credible because it is incredible.

I am not prepared to rely on such reasoning to conclude that the Crown has proved its case beyond a reasonable doubt. [ 74 ] The Crown submitted that it does not significantly reduce AB’s credibility that she included details in her trial evidence that were not in her 2012 report to the police or in her preliminary inquiry testimony. The Crown submitted that it is understandable that details would come back on further tellings of the story. The addition of details to a previously related version of events might damage credibility if the added detail was particularly significant.

But in this case, I agree with the Crown’s submission. The detail which it was shown AB added to her evidence was not in relation to points of central significance. [ 75 ] But an unexplained inconsistency between an earlier version of events and the version given at trial, on an important detail, does raise a significant concern. AB testified at trial that there was only one incidence of full vaginal penetration of her by Mr. Cutcher and that this occurred after her return from the group home when she was 15.

In cross-examination, she acknowledged that in her handwritten statement to the police in 2012 she stated that vaginal penetration occurred before she was 13. And in the allegations AB made and recanted when she was 14, she said Mr. Cutcher was having sexual intercourse with her on a monthly basis. These are significant differences. She offered no convincing explanation for them.

In my view, they further undermine her reliability. [ 76 ] I conclude that I cannot confidently rely on AB’s evidence to reach the conclusion that the conduct which constitutes the offences charged has been proved beyond a reasonable doubt. [ 77 ] In these circumstances I must find Mr. Cutcher not guilty of each of the counts in the indictment. Heard on the 24 th day of October, 2016. Dated at the City of Edmonton, Alberta this 22 nd day of November, 2016. B.R. Burrows J.C.Q.B.A. Appearances:

Carole Godfrey for the Crown Curtis Steeves for the Accused