R v MacDougall, 2020 ABQB 767

Court of Queen’s Bench of Alberta Citation: R v MacDougall, 2020 ABQB 767 Date: 20201208 Docket: 190216549Q2 Registry: Lethbridge Between: Her Majesty the Queen - and - James MacDougall Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify J.S. must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Findings of Fact of the Honourable Madam Justice Ho _______________________________________________________ [ 1 ] A jury found James MacDougall guilty of sexual assault, sexual exploitation and incest of J.S. from events arising between July 1, 2016 and the end of 2017 or early 2018, at or near Coutts, Alberta. As juries do not give reasons for a finding of guilt,

section 724 of the Criminal Code of Canada requires me as the Trial Judge to determine the factual foundation for the guilty verdicts.

[2]

Section 724 directs me to accept as proven all facts, express or implied, that are essential to the jury’s guilty verdicts, andpermits me to find any other relevant fact that was disclosed by this evidence to be proven, or hear evidence presented by either partywith respect to that fact. The relevant standard of proof is beyond a reasonable doubt so where there is conflicting evidence with respectto the factors going to the gravity of the offence, the onus is on the Crown to prove the aggravating factors beyond a reasonable doubt. [3] As Mr.

MacDougall testified in this case, I have approached the fact finding exercise, beyond those fact which I find areexpress or implied by the jury’s verdict, by utilizing the analytical framework suggested in R v W(D), (SCC), [1991] 1SCR 742, and as discussed more recently by the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 and R v Achuil, 2019 ABCA 299. [4] W(

D) reminds me that proof in criminal matters should not devolve into a credibility contest. I must be mindful of theprosecution’s onus. Here, I approach the aggravating facts by reminding myself that if I believe the Mr. MacDougall, I will not find theaggravating facts have been made out. Second, if I do not believe him but I am left in doubt by his testimony about the aggravating facts,I must not find them.

Third, even if he evidence does not leave me in doubt about the aggravating facts, I should not find those factsunless the totality of the evidence convinces me beyond a reasonable doubt. [5] During the trial, the jury heard evidence from J.S. regarding a back massage that resulted in Mr. MacDougall touching hervagina. J.S. also described an occasion on the couch when Mr. MacDougall forced her head down and she performed oral sex on him.J.S. testified that she and Mr. MacDougall engaged in oral, anal and vaginal sex over 50 times in the MacDougall residence.

She alsotestified that even after she moved out of the MacDougall residence in May 2017, she and Mr. MacDougall engaged in oral and vaginalsex when Mr. MacDougall drove J.S. in his vehicle and parked on dirt roads between Milk River, Coutts and Lethbridge. [6] In contrast, Mr.

MacDougall denied that he ever touched J.S. in circumstances of a sexual nature, and according to him, henever engaged in oral, anal and vaginal sex with J.S. [7] In order to arrive at the guilty verdicts, the jury had to have accepted J.S.’s evidence as to the essential elements of the sexualassault, sexual exploitation and incest charges beyond a reasonable doubt. In addition, the Crown asked that I find a number of facts thatwould be, for the purposes of sentencing, aggravating factors.

Defence counsel disagreed and submitted that the Crown went too far in itssuggestions regarding the degree of planning and exploitation purportedly undertaken by Mr. MacDougall. [8] In considering the totality of the evidence, and the W(

D) instruction, I conclude that many of the aggravating facts suggestedby the Crown have not been proven to the requisite standard of proof. [9] For example, the Crown asked that I find that James MacDougall took steps to isolate J.S. while she was residing with himand controlled her means of communication with her mother such that the relationship had been effectively sabotaged by him. However,J.S. testified that she would go to Grams’ house whenever she needed a break and she could use internet there. She also referred to anoccasion when she sent a text to Mr. MacDougall from a friend’s phone. Mr.

MacDougall testified to receiving a telephone call from J.S.when she used this same friend’s phone. Therefore, the evidence established that J.S. had other means of communication available to herother than through Mr. MacDougall. In addition, as Defence counsel noted during oral submissions, J.S. testified that she wanted to beaway from her mother and most of the time, had nothing to say to her. [10] Further, in support of the Crown’s theory regarding the extent of J.S.’s vulnerability, the Crown asked that I find based on theevidence and the instructions given to the jury respecting

section 273.1(2)(c), that there is a necessary factual implication associated withthe sexual assault conviction. The Crown invited me to find that not only did a power imbalance exist between Mr. MacDougall and J.S.,but that Mr. MacDougall actually exploited this power imbalance to procure J.S.’s participation in the sexual activities and draw her intoa sexual relationship. The Crown submitted that this had to be entailed in the jury’s reasoning in order for them to arrive at a guiltyverdict under

section 271. Again, I cannot accept the Crown’s position. Consider J.S.’s testimony regarding the back massage incidentand how this progressed to Mr. MacDougall rubbing her buttocks and vagina. Her evidence was that she did not expressly consent to hervagina being rubbed. Consider also that I instructed the jury that there is no consent unless J.S. agreed in her mind to the sexual activityat the time it was occurring and that silence, submission or lack of resistance does not constitute consent. Therefore, I cannot concludethat the jury relied upon

section 273.1(2)(

c) when they considered the fourth essential element of the sexual assault charge. [11] I find that the following facts have been proven beyond a reasonable doubt. [12] J.S.’s date of birth is June 4, 2000. She was a young person as defined by section 153(2) of the Criminal Code of Canada forthe period of July 2016 until June 3, 2018. [13] Mr. MacDougall is presently 42 years old and in July, 2016, he lived in Coutts, Alberta with his wife and 3 children. Earlierthat year, in the spring of 2016, Mr. MacDougall was contacted by J.S.’s mother.

J.S.’s mother expressed concerns about J.S.’s mentalhealth and other issues. They had a discussion regarding the issues J.S. was experiencing and Mr. MacDougall was told that J.S. wantedto meet him and establish a relationship with him. Mr. MacDougall agreed. Mr. MacDougall also agreed that J.S.’s boyfriend couldtravel with her. [14] Together with her boyfriend, J.S. traveled from Victoria, British Columbia and was picked up by Mr. MacDougall at theLethbridge airport on July 1, 2016.

They drove from Lethbridge to Coutts. [15] When J.S. arrived in Lethbridge, she did not have her own cellular phone and while she had a bank account open in Victoria,she did not have any money in it. [16] The initial plan was for J.S. to visit with Mr. MacDougall for 1 or 2 weeks. After approximately 2 weeks, J.S.’s boyfriend leftand J.S. stayed behind. She continued to live with Mr. MacDougall in his residence and ate meals with Mr. MacDougall and his family.From July 2016 onwards, Mr.

MacDougall was a person in a position of trust, power or authority toward J.S. [17] In or about the third week of July 2016, J.S. complained of back pain and Mr. MacDougall offered to give her a back massagein an effort to alleviate her pain. J.S. removed her top and lay down on the living room floor of the MacDougall residence, which at the

time was the trailer. Mr. MacDougall unhooked her bra and proceeded to give her a back massage. He then proceeded to remove J.S.’s pants and touched her vagina without obtaining her express consent to do so. [ 18 ] One time when sitting on a couch, Mr. MacDougall forced J.S.’s head downwards and J.S. performed oral sex on Mr. MacDougall. [ 19 ] Mr. MacDougall and J.S. engaged in oral, vaginal and anal sex on over 50 occasions in the MacDougall residence, both the trailer and the home that the MacDougall family subsequently moved into on or about August 1, 2016.

J.S. did not consent to the sexual activity. [ 20 ] After J.S. left the MacDougall residence in May 2017, Mr. MacDougall occasionally picked her up in his vehicle and would park on dirt roads located between Milk River, Coutts and Lethbridge, Alberta. J.S. and Mr. MacDougall engaged in oral and vaginal sex on these occasions. [ 21 ] Mr. MacDougall is the biological father of J.S. and he knew J.S. was his child when he engaged in vaginal and anal sexual intercourse with her. Heard on the 4 th day of December, 2020. Dated at Calgary, Alberta this 8 th day of December, 2020. L. Bernette Ho J.C.Q.B.A.

Appearances: Thomas Brannen and Dawn Janecke for the Crown Gregory White for the Accused