R v KHT, 2017 ABQB 753

Court of Queen’s Bench of Alberta Citation: R v KHT, 2017 ABQB 753 Date: 20171215 Docket: 150308716Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - KHT 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way.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 identification ban. Corrected judgment: A corrigendum was issued on December 21, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.T. deWit _______________________________________________________ Introduction [ 1 ] The Accused, KHT, is charged with sexual assault contrary to

section 271 of the Criminal Code , sexual interference contrary to

section 151 of the Criminal Code and performing an indecent act contrary to

section 173 of the Criminal Code. The indictment in this case states that these offences took place between the first day of January 2010 and the seventh day of December 2012. [ 2 ] The Accused is the great-uncle of the Complainant. It is uncontested evidence that the Complainant would visit with the

Accused and his family, at the Accused’s home, on many weekends. The Complainant testified that the sleepovers were for only onenight. However, everyone else seemed to state that she would stay over from Friday until Sunday. It is also not contested that theComplainant would generally sleep with the Accused in his bed. Again everyone agrees that the reason for this was that the Accused’sdaughter, KT, did not want the Complainant sleeping with her all the time and the Complainant suffered from nightmares and could notsleep alone.

It is also agreed that the Accused’s wife did not sleep with him because she suffered from significant stomach pains whichresulted in her having to get up during the night to walk around and she therefore slept on the couch in order not to wake anyone up. [3] The Complainant alleges that from the time that she was seven years of age until she was nine years of age the Accusedsexually assaulted her “over 10 times”. She claims that the sexual assaults involved vaginal and anal intercourse as well as fondling herbreasts.

The Accused took the stand to give evidence and denied sexually assaulting the Complainant. [4] In this case there is no issue with respect to consent or mistaken belief in consent as the Complainant was too young to giveconsent. There is no doubt that the version of events testified to by the Complainant would satisfy all of the actus reus and mens reaelements of the offences listed above. [5] The ultimate issue in this case is whether the Crown has proven their version of events, that prove the elements of theoffences, beyond a reasonable doubt.

Where the Crown and Defence provide conflicting factual versions of events the issue of credibilityarises and that is the main issue in this case. Credibility [6] In this case, as is often the case where there has been an allegation of sexual assault on a minor, the evidence consists of theallegation by the Complainant and the denial by the Accused. In some cases there is medical evidence, expert evidence or priorstatements by the Accused. No such evidence was presented in this case. The only direct evidence of the offences charged was that of theComplainant.

There is no presumption that child witnesses always tell the truth. However, as in all criminal trials, there is a presumptionthat the accused is innocent. The Crown has the burden to overcome the presumption of innocence by proving the guilt of the accusedbeyond a reasonable doubt. [7] Proving something beyond a reasonable doubt is not an easy task. Nor should it be considering the ramifications of acriminal conviction and the possible loss of liberty. Reasonable doubt is a well-known term but its meaning is less well-known.

The onuson the Crown to prove their case beyond a reasonable doubt is directly linked to the presumption of innocence: R v Lifchus, (SCC), [1997] 3 SCR 320 at paras 13, 27. The standard of proof beyond a reasonable doubt is rarely used in making life decisionsoutside of the criminal trial context. Proof beyond a reasonable doubt should not be equated with a standard that is used to make even themost important decisions of a lifetime. Those types of important decisions are usually made by assuming that certain events will in alllikelihood take place and that certain facts are probably true.

However, this standard is too low of a standard to prove guilt in a criminalcase: Lifchus, at para 24. Proof beyond a reasonable doubt requires evidence that is reliable, consistent and which stands up to scrutiny.A reasonable doubt can arise because of a lack of evidence.

Although the Crown need not prove their case beyond any doubt, proofbeyond a reasonable doubt is a significant hurdle and the court must remember how high of a standard reasonable doubt is when makingcredibility assessments. [8] In everyday life people make determinations on factual issues based on believing one person or one set of facts over another.However, the rule of reasonable doubt applies to issues of credibility.

Therefore, where a trier of fact is not able to determine who istelling the truth or whether the offence occurred beyond a reasonable doubt, the criminal burden of proof has not been met by the Crown.A conviction should never be entered because a trier of fact prefers one witnesses’ evidence over another’s. Determining credibility youshould never involve “a comparison of one not-so-great set of evidence (the accused’

s) with another not-so-great set of evidence (theCrown’s), trying to work out which one is more believable:” R v SF, 2007 PESCAD 17 at paras 23-27. [9] The case of R v W(D), (SCC), [1991] 1 SCR 742, perhaps the most cited case in Canadian criminal law, setsout a three-part test to assist judges in properly assessing credibility at p. 758: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. Thetrial Judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if theydo not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357. Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge.

A trialjudge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [10] Assessing a witnesses’ testimony requires a judge to consider whether the witness can properly interpret what they have seen,heard or experienced, whether they have a good memory, an ability to communicate, and whether there are any reasons for them to offerinaccurate information.

Inconsistencies and a lack of detail will also be considered by a judge in assessing credibility. A trial judge willalso assess the reliability of evidence based on its plausibility and whether it comports with probability. A trial judge can accept some,none or all of a witnesses’ testimony and acceptance of testimony only means that a trier of fact will give the evidence some weight

when assessing the issue in question. A judge need not conclude that a witness is a liar or is unreliable in order to reject or place littleweight on their testimony. [11] Although a trial judge must use common sense in their assessment of credibility, in cases of sexual assault a trial judge’sassessment of credibility cannot include the use of myths and stereotypes regarding sexual assault victims. These myths and stereotypeswere listed in R v Seaboyer, (SCC), [1991] 2 SCR 577 at paras 147-152.

The most prevalent myths and stereotypeswrongly applied in sexual assault cases are that victims will attempt to resist a rapist; that they will report the crime shortly after theevent or disclose it to someone shortly after the event; or that the victim will change their behaviour as a result of their victimization: R vCMG, 2016 ABQB 368, at paras 63-81. [12] The Alberta Court of Appeal set out the standard that should be used to avoid the use of rape myths and stereotypes in R vADG, 2015 ABCA 470 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 it clear that sexual assault cases should be decided "withoutresort to folk tales about how abuse victims are expected to act by people who have never suffered abuse to react to the trauma": R vShearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33 . There is no inviolable rule on how victims of sexual assault will behave: R vDD, 2000 SCC 43 at para 63, [2000] 2 SCR 275 (SCC). It cannot be assumed that sexual assault victims will react to abuse in anyobjectively identifiable way.

Findings of credibility should not be affected by the timing of disclosure alone — that is, affected by acomparison between a complainant's disclosure and the disclosure of a hypothetical 'objectively reasonable' victim. Child Witnesses [13] In this case the Complainant is 13 years of age and is testifying about events that occurred when she was between seven tonine years of age. [14] The law does not require corroboration of a child’s evidence.

Assessing the credibility of child witnesses is extremely difficultand it is important to remember the words of Chief Justice McLachlin in R v W (R), (SCC), [1992] 2 SCR 122, 1992CarswellOnt 90 where she stated at (CarswellOnt) paras 25-26: 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.), (SCC), [1990] 2 S.C.R. 30, 77C.R. (3d) 347, 56 C.C.C. (3d) 200, 111 N.R. 31, 86 Sask.

R. 111, at pp. 54-55 [S.C.R.], when, in referring to submissions regarding theCourt of Appeal judge's treatment of the evidence of the complainant, she said that: [I]t seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimonyof young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that the courtsshould not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must belowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in achild's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well foundedand his comments entirely appropriate.

While children may not be able to recount precise details and communicate the when and whereof an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years wehave adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and Ibelieve that this is a desirable development.

The credibility of every witness who testifies before the courts must, of course, be carefullyassessed but the standard of the 'reasonable adult' is not necessarily appropriate in assessing the credibility of young children. 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. [15] A trier of fact must be even more vigilant that the myths and stereotypes discussed above are not used in assessing thecredibility of a child sexual assault complainant.

In R v ARD, 2017 ABCA 237, the Alberta Court of Appeal considered evidence that achild complainant did not attempt to avoid the accused during and after the alleged sexual assaults and concluded that such evidence wasirrelevant and should not be used in assessing credibility. The court in ARD stated at para 64: Since there is "no inviolable rule on how people who are victims of trauma like a sexual assault will behave", especially children, a trialjudge's perceived lack of avoidant behaviour or lack of change in behaviour, must never be used to draw an adverse inference about acomplainant's credibility.

It is impermissible to assess a complainant's credibility by looking at consistencies or inconsistencies groundedin a search for "expected" post-sexual assault behaviour.

To interpret TEM's dicta as condoning the use of generalizations, stereotypes,myths or expectations about how victims of actual sexual assault ought to behave after victimization as being proper bases for assessingthe credibility of a particular sexual assault complainant at trial, especially a child, is overbroad and does not reflect the law. [16] Although courts will be more lenient with respect to the detail of a child witnesses testimony, their memory regarding thespecifics of the allegation and certain contradictions, must nonetheless be assessed in a manner which comports with the Crown’s onus toprove their case beyond a reasonable doubt.

The allegations against the Accused are extremely serious. However one should not forget the words of Galligan JA in R v FEJ (1990), (ON CA), 53 CCC (3d) 64 (Ont CA) at paras 7-8:

Before turning to discuss the admissibility of this evidence, there are some general comments that I would like to make. Sexual abuse of children is a despicable crime. It is not easy to detect and, because it invariably happens in private, it can be difficult to prove. Usually it comes down to the word of a child against that of an adult. It is easy, therefore, to be sympathetic with the efforts of those who try to discover these crimes and prosecute their perpetrators.

While there is no scale upon which conflicting evils can be weighed, it should be remembered that, revolting as child sexual abuse is, it would be horrible for an innocent person to be convicted of it.

For that reason, I think the courts must be vigilant to ensure that the zeal to punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction of the innocent. [ 17 ] It is with these principles in mind, and being sensitive to the differing manner in which children view certain circumstances, I now turn to the determination of credibility in this case. Analysis A. Accused’s evidence [ 18 ] Following the test as set out in WD I will first examine the evidence of the Accused.

The Accused gave evidence and made a “bald denial” that he engaged in any sexual activity with the Complainant. A bald denial does not involve any detail. However, as I will discuss later, the Complainant gave little detail with respect to her allegations. In R v McIntosh , 2010 ABCA 352 , the court stated at para 12: … Faced with the evidence of the complainant which was no more than a general description of the act alleged, and its location and with no other detail, one can ask, as did the court in R. v.

Stuparyk, 2008 ABCA 41 , “what more can the accused say or do? [ 19 ] The Accused was not impeached with a prior inconsistent statement and the Crown’s cross-examination did not touch on the allegations of the Complainant other than to put to the Accused that he had done everything that the Complainant described he did to her, and that he did have sex with her in the back seat of the blue car as well as in the bedroom of his home.

He clearly did not agree and denied these allegations. [ 20 ] The Crown argues that the Accused was evasive during his cross-examination and that he was contradicted by the Complainant’s mother, VK, and his ex-wife, MT, regarding matters not directly related to the allegations and that his actions should be viewed in the context that they were consistent with grooming and therefore I should completely reject his denial of the allegations. Before assessing the Accused’s, MT’s and VK’s evidence it is important to recognize that such an assessment should be done in conjunction with the presumption of innocence.

It is an error to assume that the accused is guilty and then dismiss the accused’s lack of memory or denial on collateral matters because that is what a guilty person would do when an innocent person may very well have little memory of innocent events: R v VY , 2010 ONCA 544 . Evasiveness [ 21 ] The Crown stated that the Accused was being evasive when he did not answer certain questions immediately and only agreed after further cross-examination. One must remember the circumstances of a witness when assessing their credibility. The accused is 63 years of age and is a handyman by trade.

Witnesses who are not experienced in court manners are often intimidated by the court process. They can also be intimidated when being cross-examined and if they do not completely understand the question being asked they will be reluctant to readily agree. This does not always mean they are being evasive or that such evasiveness is an indication of dishonesty. [ 22 ] One example of such evasiveness was when the Accused was asked whether he bought the Complainant a budgie and he answered “not directly”.

He then agreed that one of those budgies was the Complainant’s and stayed at his house and that at a later time that budgie went to the Complainant’s house. His answer of “not directly”, in my view is consistent with the Complainant’s recollection of who the budgie belonged to. The Complainant was asked whether she remembered the Accused ever buying a pet and then she said I remember him buying me a bird. When asked if the bird belonged to anyone else she answered that it also belonged to him because it stayed at his house.

In my view, the Accused’s answer “not directly” is consistent with the Complainant’s testimony that the bird also belonged to him. Therefore, in my view there was nothing evasive about his answer and it does not affect the accused’s credibility. [ 23 ] The Complainant alleged that one of the incidents occurred in the back seat of the Accused’s car. The Crown claims that the Accused was evasive when he would not agree that if they moved the passenger seat forward in his blue car there would be more room than what he had described there being.

He had indicated that there was not a lot of extra room maybe an inch maybe two inches. The Accused also stated “I don’t think so” when asked by the Crown whether the seat would move forward and backwards any further than a couple of inches. It appeared to the Court that the Accused was simply saying that there was not very much room in the back seat. He was never asked whether he moved this seat back and forth very often. During her questioning of whether there was more room in the back seat, the Crown referenced the Complainant’s version of what happened in the car on a couple of occasions.

She did not put any such version to the Accused because the Complainant did not testify to any details of what occurred in the back seat. [ 24 ] The Complainant testified that it only happened on one occasion in the car and when she was asked what the Accused did when he got in the back seat she answered “The same thing he usually would do.” When asked by the Crown for a bit more detail she answered “He made me have sex with him, I guess you could say.” The difficulty is that the Complainant did not give much detail with respect to what happened on other occasions either.

Therefore, the Crown’s questions suggested a child’s positioning that was not testified to by the Complainant and was therefore somewhat confusing. The Accused’s refusal to agree with these propositions or of other such propositions such as that there would be more room in the back seat of the vehicle if the seats were moved ahead could be viewed as the accused being evasive. However, the amount of room in the back seat of the car was never argued as a factor with respect

to whether the allegation could have taken place in the back of the car. [ 25 ] It was also argued that the Accused was being evasive when he claimed that he was somewhat overweight when Crown counsel suggested to him that he was average size and weight. The Crown then suggested he was not obese and he answered: “That depends on whose opinion.” He was asked if he might be obese and he answered “yeah”. The Accused does not look obese but I cannot say if he is overweight or not. Such determinations are very subjective and his subjective belief has no bearing on his credibility.

Presumably this line of questioning related to the allegation in the back of the car and whether there was enough room for the sexual assault to have occurred. However, as stated earlier this was never argued. 1. Contradictions With Other Witnesses [ 26 ] The Crown also argues that the Accused’s credibility is negatively affected because he did not agree with some of the testimony of the Complainant’s mother and his ex-wife with respect to certain collateral issues and therefore his evidence should be completely rejected. a. MT’s Evidence [ 27 ] The Accused’s ex-wife, MT, also testified.

MT was married to the Accused from 1988-2012, they have two children together. I will first deal with the contradictions between the Accused and his wife MT. The Crown asked MT whether she had discussed, with the Accused, that the Complainant was sleeping with him in his bed and her answer was initially “no”. Then almost immediately after saying this MT testified that on one occasion she had told the Accused that she did not think it was right that the Complainant was sleeping with him and she stated that the Accused responded by stating that there was nothing wrong with it and she should mind her own business.

She was asked if that was exactly what the Accused had said to her and she then said that what he said was “there was nothing wrong and I should shut up.” The witness did not testify as to when this conversation occurred, where it occurred or in what context it occurred. The Accused was asked during cross-examination whether he recalled his wife expressing to him that she did not think it was right for the Complainant to sleep in his bed and he indicated that he didn’t remember that being an issue and did not recall his wife speaking to him about this.

He also did not recall ever saying to his wife that nothing was wrong. I am unable to make a determination as to whether or not this occurred. [ 28 ] MT testified that she did not think things were right when the Complainant slept over. She was then asked what made her think that things were not right and she recounted one occasion where she watched the Accused carry the Complainant to the washroom so that she could go pee. The Accused’s wife testified that she was in the bedroom when this occurred and that he then simply carried the Complainant back to bed afterwards.

The Accused’s wife testified that the Accused had told her that he had to do this every night because otherwise she would wet the bed or she would have to wear pull-ups. When asked what she was doing in the bedroom she stated that she could not remember. In addition, MT testified that she never thought anything of it at the time.

The Complainant was never asked if the Accused ever took her to the bathroom and never testified as to whether she had a bed wetting problem. [ 29 ] The Accused, during cross-examination, was asked whether he was ever told by the Complainant’s mother that the Complainant had a bed wetting problem and whether she needed to be taken to the bathroom every night. He said he did not remember being told that by the Complainant’s mother. [ 30 ] Also during cross-examination, he denied taking the Complainant to the bathroom every night to go pee.

When asked if his wife had seen him do this and whether he had told his wife this he stated he did not remember either of those things occurring. The Crown then questioned him with regard to whether the Complainant needed to use pull-ups, whether she had used pull-ups or whether a person of her age would need pull-ups. The Accused responded “no” or “I don’t remember” with respect to these questions. It appeared that he had no memory of any issue or discussion regarding pull-ups or him taking the Complainant to the bathroom in the evenings.

If the Complainant had corroborated MT about the nightly bathroom breaks this may have provided a basis for challenging the Accused’s memory or credibility. In the circumstances I cannot make a determination as to whether these conversations took place and I do not find that this evidence was probative of the Accused’s credibility. [ 31 ] MT also testified that the Accused had told her that he had to put a certain cream on the Complainant because she had a skin condition. She testified that the Accused had told her that the Complainant’s mother had told him this.

However, the Accused testified that he didn’t recall the Complainant’s mother ever telling him this and he testified that he never did this. It was never put to him that he had said this to MT. It was only put to him that the Complainant’s mother never told him this and he agreed. The Complainant did not testify about the application of any cream to her body by the Accused. The Accused’s wife gave no detail as to when this conversation occurred, where it occurred and in what context it occurred.

Again I cannot make a determination as to whether these conversations occurred and, in my view, they are not significantly probative of the Accused’s credibility. [ 32 ] MT was also asked whether there were any other incidents that made her think things were not right and she testified that the Accused would bath the Complainant and the Complainant and the Accused would have towels on. When asked to provide more detail she testified that both the Accused and their daughter, KT, would bath the Complainant. She then indicated that she only saw this on one occasion.

She then further testified that she never actually saw the Accused wash the Complainant but saw him in the bathroom when the Complainant was having a bath. Her testimony in this regard was very vague. In cross-examination, Defence counsel put to her a prior statement wherein she was asked what she saw with respect to the Accused bathing the Complainant and she stated that she never saw this herself but heard it from the Accused’s other kids. She specifically had stated “it’s not something I ever saw”.

When confronted with this prior inconsistent statement MT stated she couldn’t think of it at the time of the interview and that she didn’t remember it then but it came to her later. She agreed with Defence counsel who put to her that it was a new memory that she had today. In re-direct she indicated that she was interpreting the question in her interview as to whether she had actually seen him washing the Complainant and she maintained that she had never actually seen this. [ 33 ] The Crown argued that MT was a reliable chronicler and I should prefer her evidence over that of the Accused.

In my view her testimony that she could not remember seeing this bathing at the time of the interview but remembered it later affects the reliability

of her memory. In addition, MT’s demeanour on the stand indicated she was searching her memory for answers and did not readily recall what she was being asked to recall. Her answers were vague and often devoid of any detail with respect to location, timing or context. I do not find that MT was a reliable chronicler considering the difficulties with her memory. [ 34 ] The Crown argued that the Accused engaged in grooming activities with the Complainant. She points to the evidence of MT that the Accused bought the Complainant presents such as a swimming suit and an iPod.

The Accused testified that he had no memory of buying these things. The Complainant never testified to having been given an iPod from the Accused. VK, the Complainant’s mother, was also asked about gifts given to the Complainant by the Accused and the only thing she could remember was the budgie. It would seem that if an iPod was given to a child both the child and the child’s mother would remember this. Therefore, the Accused’s evidence that he did not remember giving such presents to the Complainant is confirmed while the evidence of MT is contradicted in that regard.

In my view the Accused’s wife’s testimony where it contradicts the Accused does not contradict his evidence so that I should reject his evidence. In fact, her evidence is contradicted by other witnesses in regard to matters where more than two witnesses have given evidence. b. Evidence of VK [ 35 ] The Crown also argues that the Accused’s evidence is contradicted by VK, the Complainant’s mother, with respect to whether the Accused often transported the Complainant in the front seat of his van. The Accused testified that he would sometimes pick her up in his blue car and sometimes pick her up in his van.

VK testified that the Accused’s car was a mid-sized car and that she thought it was approximately the same size as their Ford Taurus. However she indicated she was never inside his car and never looked inside it as the Accused would come to the door of the house to pick up the Complainant. She then described that three adults would fit into the rear of her Ford Taurus. She was then asked what other vehicles the Accused drove to pick up the Complainant and she stated that there was a white van that he used.

She indicated that at one point she expressed some concerns about the Complainant being too small to sit in the front seat of that van. She gave no further detail with respect to that discussion and she did not indicate whether the Complainant continued to ride in the front seat of the van. [ 36 ] The Accused testified that he would transport the Complainant in the front seat of his van and he never gave it any thought. He was asked whether VK had asked him not to drive the Complainant in that van because it wasn’t safe and he answered “no”.

He was asked whether he had a recollection of that request from VK and he stated “no”. In fact, he stated that on several occasions VK did up the Complainant’s seatbelt.

The questions asked of the witnesses were so vague that it is unclear whether there was an actual contradiction and in my view if there was a contradiction it is not significant enough to affect either of the witnesses’ credibility. [ 37 ] The Crown also argued that the Accused did not inform the Complainant’s parents that she was sleeping with him and they assumed that she was sleeping with the Accused’s daughter or somewhere else in the Accused’s home. The Crown had put to the Accused that he could have allowed her to sleep in another place in the house other than in his bed and he agreed.

The Crown suggested that the Complainant could have slept in a number of other places and the Accused did not disagree. However when the Crown suggested that the Accused did not tell the Complainant’s parents about the sleeping arrangements because those sleeping arrangements might change, he did not agree. He indicated that the Complainant’s parents would have been fine with the sleeping arrangements. In fact, VK testified that the Accused had told her on one occasion that the Complainant had slept with him because she was having nightmares.

The Accused was not cross-examined on this conversation with VK. [ 38 ] In my view the contradictions between the testimony of the Accused and the testimony of VK do not negatively affect the credibility of the Accused to any great degree. c. Grooming Activity [ 39 ] During argument, the Crown indicated that it was strange that the Complainant would go over to the Accused’s house so often for sleepovers. She felt it was indicative of the grooming that was occurring.

She further argued that it did not make sense that the Accused would bring the Complainant over so often because the Complainant’s parents were having poker games and smoking too much. However, the Complainant was never asked why she went over to the Accused’s place as often as she did. She testified that sometimes she would go over once a month or no times a month but usually it was about three times per month. VK testified that the Complainant would sleep over an average of one to two times per month. She was never asked why the Complainant would go over to the Accused’s residence so often.

This clearly contradicts the evidence of MT who claimed that the Complainant initially came over approximately once a month and then it became more and then she rarely missed a weekend. She described the Complainant as coming over “lots”. [ 40 ] The Accused agreed that the Complainant was coming over every weekend towards the end of that time period. He viewed the Complainant as being like one of his children. However, he did not say that she was coming over because the parents were smoking too much. He agreed that he did not think that kids should be around cigarettes and booze.

The Crown suggested, in questioning, that the Accused was insisting that the Complainant stay over for the weekends. However, the Accused never agreed with this or testified that he ever insisted that the Complainant come over on the weekends. He did agree that he had some concerns about the Complainant being exposed to cigarette smoke in her own home. He also agreed that he took it upon himself to decide that it was best for the Complainant to have her at his house to avoid the smoke in her home.

However, there was no evidence that he told his wife this was why the Complainant was coming over and it was never suggested to the Accused that this was the only reason the Complainant was coming over to the Accused’s home. I do not find this to be grooming behavior. Nor do I find that the Accused giving some presents from the dollar store to the Complainant grooming behavior.

His behavior is just as consistent with caring about the Complainant as much as his other children who he also took to the dollar store on occasion. [ 41 ] In the context of step one of the WD test the term “believe” requires that there is total acceptance of the Accused’s exculpatory version of events. Was the Accused’s testimony so persuasive that I completely accept his denials? I would agree that there was some evasiveness on the part of the Accused when he gave his testimony. In addition there are some contradictions between his evidence and the evidence of MT and VK.

I simply do not know if this evasiveness is simply an unsophisticated witness feeling

intimidated by the court process or someone who is trying to be obstructionist. The contradictions in this case could be a result of either party not having an accurate recollection of the collateral events and I cannot say which party is mistaken. In the end in my view his evasiveness, the contradictions between his evidence and that of other witnesses on collateral matters, and the Complainant’s allegations do not allow me to believe his denials and totally accept them as being the truth. Therefore, I must proceed to the second step of the WD test.

Second Step of WD [ 42 ] The second part of the WD test requires I apply reasonable doubt to the Accused’s denials while considering his evidence in conjunction with the Complainant’s evidence and the other evidence at trial. The overriding principle behind the second step of the WD test is that the court cannot prefer the evidence of the Crown witnesses over the Accused and then convict. The Accused’s evidence must be completely rejected so that it does not raise a reasonable doubt.

This may occur in cases where the Accused’s evidence is impeached through prior inconsistent statements, overwhelming contradictory evidence, a denial that is outlandish and impossible to accept or such strong Crown evidence that there could be no reasonable doubt. [ 43 ] In this case, the Accused took the stand and gave evidence denying the allegations that the Complainant made against him. In doing so he subjected himself to cross-examination. An Accused person need not take the stand and may rely on the presumption of innocence thereby not allowing himself to be subject to cross-examination.

When an Accused takes the stand this is significant as he or she allows for cross-examination. In this case the Accused was not impeached with contradictory evidence or contradictory statements other than the evidence I have described above which in my view cannot allow me to reject his evidence beyond a reasonable doubt. The Accused’s denials are not implausible, outlandish or impossible.

However, I must consider his evidence with all of the evidence in the trial including the evidence of the Complainant to determine if it raises a reasonable doubt as to guilt. [ 44 ] A court may reject the evidence of an accused because they accept the evidence of the complainant: see: R v REM , 2008 SCC 51 ; R v Vuradin , 2013 SCC 38 . This may seem contrary to the principle that a trial judge is not to simply choose between the evidence of the complainant and the evidence of the accused and adopt one version.

However, a court will not be in conflict with the principal stated above if the evidence of the complainant is so compelling that it leaves no doubt that the crime was committed by the accused in spite of the accused’s denial. In R v AN , 2017 ONCA 647 , the court stated at paras 15-16: The principle in J.J.R.D.

At para. 53 of J.J.R.D , Doherty J.A. wrote for the court that, "An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence." Rejection of an accused's evidence based on the acceptance of a complainant's conflicting evidence constitutes reversible error if the acceptance, beyond a reasonable doubt, is not considered and reasoned: R. v.

D.H., 2016 ONCA 569 , 338 C.C.C. (3d) 251 (Ont. C.A.). [ 45 ] Therefore, I must consider the Complainant’s evidence to consider if it convinces me that the Accused’s denials do not raise a reasonable doubt as to guilt. [ 46 ] In this case, the Crown’s evidence with respect to the facts of the offence was given by the Complainant. There was no corroboration of such evidence by any other source.

No corroboration is needed and a witnesses’ evidence on its own can be sufficient to convict where that evidence is sufficiently strong. [ 47 ] In many cases where a child witness testifies, a prior interview with the child witness can be entered for the truth of its contents if the witness adopts it pursuant to s. 715.1 of the Criminal Code . These types of statements can be useful to a court in assessing a child witnesses’ evidence.

As stated earlier, a child witness may have difficulties with memory of details or they may have difficulty explaining certain concepts and a recorded video statement made much closer to the time of the allegation will allow a trier of fact the ability to assess the demeanour and accuracy of a child witness without the added stress and threatening environment of a courtroom. However, in this case there was no such statement. Therefore, the court was forced to rely entirely on the viva voce evidence of the Complainant. B.

Complainant’s Evidence [ 48 ] The Complainant is now 13 and was between the ages of seven and nine when she alleges that the sexual incidents took place. She is now in grade nine. She was asked by the Crown prosecutor if she could tell us in one sentence what you are here to tell the judge about and she stated “I was raped by a family member”. She was then asked to describe what the word “rape” meant and she says “I was forced to do things against my will. Sexual things against my will.” [ 49 ] She testified that these sexual acts continued from the time she was seven until she was nine years of age.

She then said that it was the Accused who was doing these things to her. Both counsel have agreed that identity is not an issue. The Complainant testified that the Accused is her mother’s uncle. [ 50 ] The Complainant testified that she would go for sleepovers to the Accused’s home and that sometimes she would go once a month or no times a month but usually it was around three times a month. The Complainant did not specifically recall when the sleepovers started. [ 51 ] The Complainant testified that the Accused would pick her up or her parents would drop her off.

Although she did not recall what they specifically did during the day she recalled that they would go out as a group to dinner, to a store or a mall. Sometimes she and

KT would go to the park together. [ 52 ] The Complainant testified that the first time anything was done sexually to her was when “I was sleeping with him in his room because I didn’t feel comfortable sleeping alone because I usually have nightmares and KT wouldn’t let me sleep in her room.” “I woke up and my clothes weren’t on, and he was on top of me.” [ 53 ] She testified that the first thing she noticed was “I felt something unusual that I don’t quite know how to explain.” She was then asked where she felt the something unusual and she stated “in like my lower private part.

I don’t quite know how to explain it, like I said.” She then used the word vagina. She said this unusual feeling was bad. She stated “I felt sick and my like I felt sick to my stomach and I felt throbbing.” She stated that this throbbing came from her vagina. When asked what part of the vagina she stated I’m not sure, but then stated that it was inside. She then stated that she felt sick to her stomach and felt like “I had to puke. Like I kind of felt scared.” She further testified that she did not understand what was happening at the time.

She was asked whether she remembered any smells or sounds and she answered that she did not. She testified that she could not remember what she saw with her eyes when she looked around. She was then asked by the prosecutor what was causing the throbbing inside her vagina and she then asked for a break so the question was unanswered. [ 54 ] The prosecutor asked her what the Accused was doing “when you woke up and he was on top of you” and she answered “and he had just stopped”. When asked what he had just stop doing she stated “I don’t have any memory of what he was doing before”.

She then stated that he got up and went to the bathroom. She then indicated that she tried to go back to sleep because she didn’t know what just happened. She was asked how many times the Accused had forced her to do sexual things and she stated “it was over ten times”. [ 55 ] The Crown asked the witness if she could give an example of one or more of the other times after the one you just told us about. The witness answered “it was quite similar. He’d usually wait until I had gone to bed.” She was asked if these occurred in the same place and she said it was mainly just in his room.

She was asked how big the bed was and she stated “I don’t remember”. She was then asked how the two of them would position themselves and she indicated that she would sleep on her back or her side curled up. She was asked how the Accused would sleep compared to her and she stated “I don’t remember”.

She further testified that sometimes she would go to bed alone and other times he would have gone to bed and fallen asleep before her. [ 56 ] She was asked whether any sexual things happened to her anywhere else besides in his bedroom and she answered “I used to go with him when he was working because I had nothing else to do and he was the only one home and it happened in his car.” She testified that when it happened the car was in a garage because he had driven the car into the garage. She also testified that it happened in the back seat of the car.

She stated that she could not remember how old she was when this happened in the car in the garage. She also could not say what garage this happened in. She said the garage was used for tools. She said she had never been in the garage before and that it was not attached to a home. When asked about the size of the garage she said it could only probably fit one car and then changed that to one or two depending on how big the car was. [ 57 ] The Complainant said the car that she was in was blue and that it had four doors.

She said she had been in this car a number of times when they went to restaurants or to the store or when he came to pick her up. She said he forced her to do sexual things in the car only once. [ 58 ] She said he “parked the car and came to the back seat through – he went through his door and into the door to the back seat”.

The Complainant was asked what the Accused had done when he came into the back seat of the car with her and she stated “the same thing he usually would do.” When she was asked by the prosecutor to give more detail she said “He made me have sex with him and I tried to say no but he wouldn’t take no for an answer.” She said that was not the only time she told him “no” and that she told him no any time it happened when she was awake. She also stated that there were times when she was not awake when it would happen.

She was asked to give detail about these times and she said “all I remembered when I woke up was him on top of me and leaving to the bathroom”. She recalled that he did not have clothes on, on these occasions, sometimes he would be completely naked and other times he would have a shirt on. [ 59 ] The Complainant was asked whether she ever looked at his private area and she stated “no, or not that I can remember, at least.” She asked whether she ever saw the Accused’s penis while he was walking away and she stated “no I don’t remember, I tried not to look.

I don’t remember looking” she was asked whether she remembered noticing anything on the Accused’s penis and she stated “no I don’t remember.” During cross-examination she was shown a previous statement to the police where she indicated “because I saw it” in reference to the Accused’s penis. [ 60 ] The Complainant testified that the parts of Accused’s body that touched her were his penis and his hands. She testified that his penis touched her vagina inside and touched her butt inside. She specifically stated his penis did not touch any other part of her body.

She was then asked by Crown whether anything ever came out of his penis and she stated “I don’t remember”. [ 61 ] The Complainant further stated that his hands would touch her boobs.

She asked how it felt to her when he did that and she stated “I don’t remember all I remember is being scared.” She was asked whether her boobs were developed at that time at the age of seven and nine and she stated they had not yet developed. [ 62 ] The Complainant was asked to describe how her body was positioned compared to the Accused’s when he put his penis in her vagina and she said “I don’t know how to answer that” but then she said she was laying down on her back.

When asked how the Accused’s body was positioned towards her when she was on her back she stated “I don’t remember.” She further stated that she was looking at his face when she opened her eyes. When asked whether there were any different positions of their bodies when he put his penis inside her vagina she stated “no”. [ 63 ] When asked what her body position was when he put his penis inside her, the Complainant stated “I would have been on my stomach”.

She was then asked whether she was flat on her stomach or positioned in another way and she stated “I don’t remember”. [ 64 ] The Complainant was asked how she came to notice that the Accused was putting his penis in her butt and she said “again, it was usually when I woke up.” She was asked what the first thing she would notice when she woke up and she stated “I felt his penis in

my vagina”. She was asked what was the first thing she remembered when she woke up with his penis inside her butt and she stated “I don’t remember”. She indicated that she believed that he had put his penis in her butt more than once. She was then asked how did you know he was putting his penis inside your butt and she answered “It felt the same as if he were to be putting his penis in my Vagina”.

She was then asked what was that feeling and she answered “I don’t necessarily know how to explain it I mean, it felt bad.” [ 65 ] The Complainant was asked whether she had any injuries from these sexual activities in her vagina or butt and she stated “no not that I remember”. She was then asked did you have any pain or soreness from either of these types of sexual activities and she stated “I don’t remember”.

She was asked how she would know it was over and she stated “He usually got off of me and go to the bathroom. [ 66 ] The Complainant was asked why she had not told MT about what was happening and she stated “I actually don’t know.

I hadn’t really thought about telling anyone because, like I had said, I didn’t know what was happening.” She was then asked whether there were any other places besides the Accused’s bedroom and the blue car where she he had forced her to do sexual things and she stated “not that I remember.” [ 67 ] The Complainant stated that one time the Accused got mad at her and yelled “I know you don’t want to because I’m an old mother fucker and he went off mumbling” she was asked what was happening to her when he said this and she said “I don’t remember exactly what happened.” She was asked where in her room they were when he said this and she stated “no I don’t remember”. [ 68 ] The Complainant was asked whether he ever tried to get her to touch any part of him with her body and she said “yes but I said no.” She was then asked if she could tell us what it was he was trying to get her to do and she stated “I don’t remember.” She was then pushed farther to give an answer and she stated “if I do remember correctly, he wanted me to go on top of him rather than him on top of me.” She was then asked how did he communicate this to you did he use words or say something or did he do it with gestures and she answered “I don’t remember”. [ 69 ] The Complainant was then asked whether she remembered any specific words he used and she stated “I don’t remember”.

She then answered no when she was asked whether she got on top of him.

She was then asked what happened after she said no about getting on top of him and she answered “I don’t remember.” She was then asked to remember what his reaction was when she said no, such as facial reaction or words and she stated “I don’t remember”. [ 70 ] The Complainant was asked whether she remembered the Accused ever trying to be intimate with her in any other way that was different from using his hands or penis and she stated “I don’t remember.” [ 71 ] The Complainant testified that the Accused would take her to the dollar store and let her choose things she wanted and these things were mainly toys and snacks.

She was asked whether she was ever told no as to anything she chose and she stated “I don’t remember”. She said that when they would go to the store sometimes the other kids would go that being the whole family. When everyone went everyone got to choose something. She was asked whether he bought her anything else that wasn’t from the dollar store and she stated “I don’t remember”. [ 72 ] The Complainant was asked whether she ever used her body to physically stop him from doing what he was doing and she answered “no”.

The Crown again asked her if she ever used her body or physically tried to stop the Accused from doing what he was doing and she said “no” when asked why not she said “I’m not sure.” However this statement was contradicted in cross- examination where a previous statement indicated that she said she had tried to push him off on one occasion.

When she was presented with this inconsistency by defence counsel she indicated that she did not remember saying that in her statement to the police. [ 73 ] The Complainant was unable to recall many details with respect to questions requesting detail regarding the broad allegations made by her. 1. Contradictions [ 74 ] The Defence argued that it was a significant contradiction that when the Complainant first gave a statement to the police in 2012 and she was specifically asked whether anyone had touched her inappropriately and she had said nothing about the Accused.

The Complainant then went to her mother with the allegations in 2015. She was asked whether she talked to the police before when she was 11 and she stated: “I don’t remember what was said. All I remember was being too scared to say anything, and I didn’t quite understand what questions they were asking.” Her reason for providing this contradictory statement was because she was scared. However, she gave this reason as a result of a suggestive question by her mother. [ 75 ] VK testified that the Complainant first came to her in February 2015, and told her that her Uncle had sexually abused her.

VK further testified that she told the Complainant that she believed her and that she was not mad and that they would talk further the next day. VK further testified that the police had told her to just ask basic questions and only yes or no questions. VK then testified that she stated to the Complainant: “is the reason you waited to tell me because you were afraid because he was still around and he would be present” and she said yes. VK went on to state that she further stated to the Complainant: “was fear the reason you did not say anything when first asked” and the Complainant had said yes.

These types of suggestive questions are exactly the opposite of what the Complainant should have been asked. However, clearly VK had simply misunderstood the police officer’s instructions. The reason for making an admitted contradictory statement is always relevant to a determination of credibility. However, in this case the suggestive question and answer do not allow the court to assess the impact of the Complainant’s reason for giving a contradictory statement.

However, I do not find that the reason for her contradiction to have any negative impact on her credibility. [ 76 ] The Complainant also testified that she began to understand more about what was happening as she got older and when these subjects were being talked about in school. She said she started to realize more about what was happening when she was 10 or 11 years old. She testified there was a difference between how she thought about what the accused had done to her when she was 11 as opposed to now that she is 14 years old.

She also stated: “I more realize how -- I realize more so how wrong and wrong it was and how you know, I should have told someone sooner. Most of it very much the same.”

[ 77 ] As stated above, delayed disclosure in cases where child witnesses make allegations is not a proper form of impeachment. However, where a child witness is specifically asked whether anything untoward occurred and they specifically said no and then later claim something did happen, this can still be a factor for the court to take into consideration.

However, in this case I do not find that the Complainant’s credibility is negatively impacted by her not telling the police about these allegations in 2011. [ 78 ] When making determinations of credibility it must be remembered that there are two types of inaccurate testimony which result in problems. Where a witness is intentionally offering false evidence their credibility is suspect. Where a witness is honestly mistaken it is their reliability which comes into question. In this case, I have no difficulties with the Complainant’s credibility.

It is my view that she has come to Court to give her best recollection of what she remembers occurring. The contradiction described above does not negatively affect her credibility because her explanation that she was scared could very well be true. However, memories can be affected by a host of different factors. Therefore, the reliability of a witness’ memory must be carefully assessed. [ 79 ] I bear in mind when reviewing the evidence of the Complainant that flaws in a child’s testimony should not be given the same effect as similar flaws in an adult’s testimony” W(

R) at para 100. The standard of a reasonable adult is not necessarily appropriate when assessing the credibility of children: CMG at para 100 citing R v B(G) , 2012 MBCA 5 . 2. Memory [ 80 ] A child witness may have difficulty communicating when giving their testimony because they view the world from a different perspective than an adult. The child witnesses’ capacity to make certain observations will be less than that of an adult in most circumstances especially circumstances related to sex.

However, where a witness has significant difficulty remembering important aspects of allegations this will be concerning to the court. Certain detail must be provided to give credence to an allegation. How much detail will be sufficient to convince a trier of fact of the truth of the allegation will depend on the circumstances of each case. [ 81 ] I have just reviewed the evidence of the Complainant and it is clear that in examination-in-chief, when questioned by the Crown, she could give little detail with respect to her allegations.

The Crown attempted to have the Complainant expand upon her testimony on numerous occasions, however the Complainant was unable to do so. In examination-in-chief alone the Complainant answered “I don’t know” or gave a similar answer numerous times. Not all of these answers were with respect to important issues however the vast majority of them were with respect to the type of detail which would give the Court confidence in the allegations made by the Complainant.

This lack of detail and memory with respect to that detail is a significant concern to this court with respect to the reliability of the Complainant’s evidence. [ 82 ] During examination-in-chief, the Crown attempted to refresh the Complainant’s memory with respect to certain things. The Crown had asked her whether there were any other sexual acts other than those in the Accused’s bedroom and in the blue car and she had stated that she did not remember.

After reading her transcript she indicated “it still doesn’t quite refresh my memory.” The Crown asked her whether she remembered anything coming out of the Accused’s penis and she stated that she did not remember. She was then shown her transcript and she stated it only refreshed my memory a bit but I had not remembered saying that and then she stated “I’m still not sure if it had - I’m still unsure.” The Complainant then stated “no” when asked did she remember that. The Crown had asked her previously if she ever expressed anything to the Accused about what he was doing to her and she said she didn’t remember.

She read the transcript and stated that it did refresh her memory and she remembered telling him that “it wasn’t right and I told him to stop.” However she was unable to remember any response from the Accused. She had been asked whether the Accused had tried to do anything else intimate with her beside putting his penis in her vagina and butt and putting his hands on her boobs and she indicated she still didn’t remember. [ 83 ] During her examination-in-chief, the Complainant did not testify that anything untoward happened between herself and the Accused at her parent’s home.

The Crown had attempted to refresh her memory by showing her the transcript which indicated that something had happened. However, she testified that she had no memory and the transcript did not refresh her memory. During cross- examination, the next day, the Complainant changed her mind and indicated that she did remember something. However she did not give any description of what she remembered about anything occurring at her home. She was asked by the Crown whether she had read the transcript the previous day and she said that she did.

This again may be an example of the difficulties with a child witnesses’ memory. However, where a person’s memory changes that quickly or the witness says that they did not say something instead of saying they don’t remember and it is shown that they did say that statement the Court must consider this with respect to the reliability of the witnesses’ memory. [ 84 ] In cross-examination, the Complainant admitted that it was hard for her to remember things when she was 7 to 9 years old. This is understandable, as she is a 13 year old who is describing events that took place when she was 7-9 years old.

However, I still have concerns. I have reviewed some of the contradictions with respect to her prior statements where her only explanation was that she did not remember making these previous statements. This again gives the Court concern with respect to the Complainant’s memory and the reliability of her evidence. [ 85 ] With respect to some of the things put to her by Defence counsel, the Complainant did not just say that she did not remember, but specifically stated that she did not say those things.

One of the things that was put to her was that she had told the police that she felt sometimes like her parents were going to divorce. She indicated that she did not say these words. However, the transcript shows that she did say these words. Not only was her memory faulty but she testified that she was sure that it was not faulty. Again this is concerning to the Court with respect to the Complainant’s memory and the reliability of her evidence.

Conclusion [ 86 ] In the circumstances of this case I have already concluded that the Accused’s denials are not implausible and he has not been impeached so that I can reject his evidence beyond a reasonable doubt. I do not disbelieve the Complainant and I believe she was doing her best to give her version of events. In my view, although I have no concerns that the Complainant was attempting to mislead the

Court, I have significant concerns with respect to the quality of her memory and her reliability because of certain contradictions and her inability to provide detail with respect to the allegations that she has made. The quality of evidence needed to convict an accused beyond a reasonable doubt must be convincing, consistent and indubitably reliable. The Complainant’s evidence is not sufficiently strong to allow me to disregard the plausible denial given by the accused. Therefore, although I do not fully believe the denials of the Accused I am unable to decide that he is guilty beyond a reasonable doubt.

The charges against the Accused are dismissed. Heard on the 30 th and 31 st day of October and the 1 st and 2 nd day of November, 2017. Dated at the City of Calgary, Alberta this 15 th day of December, 2017. W.T. deWit J.C.Q.B.A. Appearances: Veronica Alexander, Crown Prosecutor’s Office for the Crown Curtis Steeves, Pringle Chivers Spark Teskey for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr.

Justice W.T. deWit _______________________________________________________ A restriction on publication notice was added to the decision; as the accused is related to the complainant, his name was replaced with initials. Citation formats were revised.