R v PO, 2021 ABQB 318

Court of Queen’s Bench of Alberta Citation: R v PO, 2021 ABQB 318 Date: 20210421 Docket: 181424706Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - PO 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Judgment of the Honourable Mr. Justice S.N. Mandziuk _______________________________________________________

Table of Contents I. Introduction . 5 (

a) The Charges . 5 (

b) Crown Position . 5 (

c) Defence Position . 6 II. Judgment Outline . 6 III. The Facts . 7 (

a) Preliminary Remarks . 7 (

b) The Relationship Between AB and the Accused Begins . 8 (

c) Medicine Hat 8 (

d) AB’s Trip to the Middle East and return to Edmonton: 2015-2016 . 9 (

e) Regina: June, 2016 . 9 (

f) EP Investigation & Accused’s Arrest 10 i. EPS Interview: December 1, 2016 . 11 ii. EPS Interview: December 2, 2016 . 12 iii. Accused’s Arrest & Search of his home: December 5, 2016 . 12 iv. EPS Interview: December 7, 2016 . 13 v. EPS Interview: February 16, 2017 . 14 (

g) Preliminary Inquiry: March 27 to 29 and April 3, 2018 . 14 (

h) AB’s Trial Testimony . 15 i. AB’s Initial Trial Testimony . 16 ii. Two ERC Calls Are Played . 23 iii. AB’s Post-ERC Call Testimony . 26 IV. Threshold Legal Principles . 28 (

a) Burden and Standard of Proof . 28 (

b) Approach to the Evidence . 28 (

c) Myths and Stereotypes . 31 (

d) Assessing Credibility . 34 i. General Approach to Assessing Witness Credibility . 34 ii. R v W(

D) and R v Ryon . 38 (

e) Vetrovec Considerations . 39 The Vetrovec Caution . 40 Analysis . 40 Conclusions on Vetrovec . 42 (

f) Credibility Assessment of a Recanting Witness . 44 V. Extrinsic Misconduct Evidence . 46 (

a) Introduction . 46 (

b) The Putative Evidence . 46

(

c) Positions of Crown and Defence . 48 (

d) The Law .. 49 i. General rules . 49 ii. Analytical process . 49 (

e) Decision . 52 (

g) The Uses of the Extrinsic Misconduct Evidence . 53 i. Narrative and context 53 ii. The Accused’s motive and animus . 53 iii. AB’s credibility and reliability . 53 (

h) Conclusion . 54 VI. AB’s Credibility: Analysis and Conclusions . 54 (

a) Decision . 54 (

b) Reasons for Conclusion . 55 i. Context of Police Interviews . 55 ii. Embellishment 55 iii. Self-Effacing Statements . 56 iv. Demeanour 56 v. Inconsistencies . 57 vi. Admissions and Explanations . 63 vii. Changing Attitude . 64 viii. Extrinsic Misconduct 65 VII. The Offences . 65 i. Introduction . 65 ii. Acts of Violence and Sexual Assaults . 65 i. Sexual assault with a weapon – s 272(2)(a) – Count 7 . 66 ii. Aggravated assault – s 268 – Count 8 & Sexual Assault, - s 271 – Count 9 . 77 iii. Assault with a weapon – s 267(a) – Count 5 . 80 iv.

Using firearm in commission of offence (uttering threats) – s 85(1)(a) – Count 6 . 80 iii. Sex Trade Offences . 82 i. Trafficking in persons – s 279.01 – Count 1 . 82 ii. Material benefit from sexual services – s 286.2(1) – Count 2 . 87 iii. Procuring – s 286.3(1) – Count 3 . 94 iv. Advertising sexual services – s 286.4 – Count 4 . 96 iv. Firearm Offences . 98 i. Possession of a firearm knowing its possession is unauthorized – s 92(1) – Count 10 . 98 ii. Possession contrary to order – s 117.01(1) – Count 11 . 101 v. Breach of Orders . 102 i. Disobeying order of court – s 127(1) – Counts 12 & 13 . 102

ii. Obstruction of Justice– s 139(2) – Count 14 . 103 VIII.

Summary . 111 I. Introduction (

a) The Charges [ 1 ] This was a lengthy and complex trial. The charges against the Accused are set out in a 14 count Indictment. They include:

a) sex trade offences (human trafficking, obtaining material benefit, procuring and advertising sexual services);

b) sexual assault and sexual assault with a weapon;

c) other assaults including aggravated assault;

d) threats with a firearm;

e) breach of recognizance;

f) breach of court orders;

g) possession of a restricted firearm without a license; and

h) obstruction of justice. [ 2 ] There is a single Complainant. I will refer to her in this Judgment as AB. AB was the principal Crown witness in the trial. (

b) Crown Position [ 3 ] The Accused and AB were involved in the escorting business together. They also had a personal relationship. [ 4 ] The Crown advances the position that the relationship was rife with sexual abuse, violence, exploitation, coercion and manipulation, all of which were used by the Accused to secure and maintain AB’s compliance. [ 5 ] The Accused is alleged to have forced AB to provide sexual services to third parties for money in various locations in Western Canada. He controlled AB’s work: where it happened, pricing, her appearance, advertising and so forth.

He kept most if not all of the money that AB earned after paying expenses, such as hotels, food, online advertising and transportation costs. [ 6 ] One of the charges involves the Accused threatening and striking AB with a handgun, forcing her to perform fellatio and analingus on him. This incident is captured in videos seized from the Accused’s cellphone. Another charged incident involves the Accused beating AB with a belt and then sexually assaulting her.

There are also charges arising from the unlawful possession and use of a firearm. [ 7 ] The Crown led evidence of numerous recorded telephone calls between the Accused and AB while the Accused was incarcerated at the Edmonton Remand Centre (ERC) and prohibited by court order from contacting AB. The Crown alleges that while he was in custody at ERC, the Accused dissuaded AB from testifying honestly and fully at the Preliminary Inquiry and the Trial. (

c) Defence Position [ 8 ] The Defence attacks AB’s credibility and the reliability of her evidence. AB’s evidence – which is critical to the Crown’s case - “. . . taken as a whole, is so unreliable and incredible, driven as it is by [AB]’s changing motives throughout, that simply none of it can be reasonably believed, isolated then selected out and marshalled into a grouping of inculpatory evidence in respect of the elements of the various offences” (Defence Surrebuttal Brief, para 8).

The Defence argues that “all of the various versions are so inconsistent that none of her evidence on material issues is safe” (Defence Closing Submissions on the Law, para 45). [ 9 ] AB’s evidence is critical to the Crown’s case. She is not credible; she is not believable.

Therefore, the Defence argues that the Crown cannot prove its case beyond a reasonable doubt in reliance on her evidence. [ 10 ] The Defence also argues that there are alternative rational explanations for the inculpatory evidence against the Accused that are consistent with the Accused’s innocence, or at least raise a reasonable doubt as to his guilt. [ 11 ] The Defence characterizes the relationship between the Accused and AB as (predominantly) “boyfriend/girlfriend” involving shared goals of “having a good life together, free of the need to engage in the sex trade business” (Defence Closing Submissions on the Law, para 93).

In this context, the Accused performed a responsible managerial role in the furtherance of AB’s escorting activities.

II. Judgment Outline [12] The length of this written Judgment reflects the duration and complexity of this trial; therefore, I read an abbreviated

summaryof this Judgment into the record in open Court and provide this written Judgment to Counsel afterwards. [13] This approach was endorsed by our Court of Appeal in R v Vander Leeuw, 2021 ABCA 61 [Vander Leeuw]. In VanderLeeuw the Trial Judge (Lema,

J) read brief reasons for his decision into the record and then filed full written reasons. [14] Our Court of Appeal held that “ . . . this was an appropriate procedure to follow, as there are many reasons for a trial judge togive a brief oral synopsis of the reasons, supplemented by formal written reasons” (at para 9). [15] This written Judgment represents the operative decision and reasons of the Court. [16] After outlining the facts, I will address some of the legal issues that were raised and argued by Crown and Defenceconcerning:

a) burden and standard of proof and the proper approach to the evidence;

b) myths and stereotypes that can arise with respect to sex workers, alleged victims of sexual assault and accused persons;

c) the general approach to assessing credibility; specific issues arising from Vetrovec v The Queen, (SCC), [1982] 1SCR 811 [Vetrovec]; and recanting witness’s credibility; and

d) the admissibility and use of extrinsic misconduct evidence advanced by the Crown. [17] I then provide my assessment of AB’s credibility. [18] Finally, I will discuss each of the offences charged in the Indictment and determine whether the Crown has met its burden ofproving each charge beyond a reasonable doubt. III. The Facts (

a) Preliminary Remarks [19] Jurisdiction and date are not in issue. [20] My overview of the facts comes from various sources, including: • several Agreed Statements of Fact, which counsel helpfully provided during the Trial; • statements given by AB to the police in Regina (once) and Edmonton (four times); • AB’s Preliminary Inquiry testimony; • AB’s Trial testimony (including Examination in Chief, cross-examination by the Crown as a hostile witness, Cross-examinationby the Defence and redirect by the Crown); • Trial testimony of the Accused’s sister (referred to as SB) and mother (referred to as HB). • Trial testimony of various police officers who conducted the investigation, conducted searches and interviewed AB, SB and HB. • other witnesses who provided evidence of a technical nature related to data extraction and telephone call recordings. • documents, recording and transcripts of telephone calls, information extracted from the Accused’s cellphone and other pieces ofevidence. [21] The relevant facts commence with the Accused and AB meeting in November, 2014 and run an eventful course, includingdealings with the police and Provincial Court in Medicine Hat, AB’s trip to the Middle East with her family, her return to Edmonton andreunion with the Accused, events in Regina which resulted in AB’s first police statement and then AB’s decision to leave the Accused,which led to four interviews with Edmonton Police Service (EPS) officers, and ultimately the present charges and court proceedings. [22] AB provided several versions of events at different times, depending on circumstances and venue.

Some versions areinculpatory as against the Accused, others are exculpatory, in their entirety or in part. In fact, AB admitted in open court that she hadbeen untruthful to the police and to the Court. (

b) The Relationship Between AB and the Accused Begins [23] At the time that she met the Accused, AB was working in a retail store in Edmonton. She was living with her father. Herparents are divorced. The Accused and AB met through a dating website. AB was 19 years old.

[ 24 ] The Accused was 23 years old and also lived in Edmonton. There is mixed evidence concerning the Accused’s job situation at the time, although AB said at one point during her Regina police interview that he had a job. [ 25 ] A dating relationship began. AB told the Accused very early in the relationship that she had worked as an escort. [ 26 ] The Accused became involved in AB’s escorting activities, mostly in other cities in Western Canada. Typically, they would rent a hotel room and place advertisements on websites (including one called “backpage.com”) used by escorts to advertise their services.

Clients negotiated price and services by text and then came to the hotel. [ 27 ] This timeline was generally corroborated by AB’s sister (SB) in her testimony. [ 28 ] SB learned that AB was in a relationship with someone in Spring, 2015. AB was beginning to be absent from home often, for long periods of time, from 1 ½ weeks to 1 ½ months. AB seemed to no longer have a phone. Their contact was through Snapchat or a private number used by AB. [ 29 ] HB (AB’s mother) testified that during 2015 she thought that AB was working in Fort McMurray on rotational shifts.

AB would return home from time to time, and then be gone for 2 weeks to 2 months. Further, AB’s phone number would change frequently. She was hard to contact. (

c) Medicine Hat [ 30 ] In July, 2015, the Accused and AB were in Medicine Hat. [ 31 ] During a “sting” operation targeted at escorting service providers and others working in that industry, an undercover officer responded to an advertisement on backpage.com and arranged a meeting at a hotel with “Lola” to obtain sexual services at a negotiated price. The arrangements were made by text message. [ 32 ] When the officers arrived at the designated hotel room, the Accused left the room carrying a cellphone. AB answered the door.

She was wearing lingerie. [ 33 ] Concurrently, another officer was texting with “Roxy” to arrange sexual services. The Accused was using a computer in the business area of the hotel. The officer approached the Accused to see how long he would need the computer and saw his own text messages with “Roxy” on the screen of one of Accused’s cellphones. [ 34 ] The Accused was arrested.

He had two cellphones and an iPad in his possession According to an Agreed Statement of Facts, “[t]he phones were very busy”. [ 35 ] AB was issued two tickets for unlicensed escorting offences. [ 36 ] The Accused was charged with procuring under s 286.3(1) of the Code and two s 145 charges. He was released on a Recognizance, which included a no contact order prohibiting the Accused from contacting AB. (

d) AB’s Trip to the Middle East and return to Edmonton: 2015-2016 [ 37 ] AB travelled to the Middle East from November 4, 2015 until March or April, 2016. She went with HB and SB. They attended a family wedding and visited various relatives. [ 38 ] During the trip, HB found escorting offence tickets in AB’s wallet. They had a discussion and HB was concerned. HB testified that she knew the Accused’s name at this point in time and that AB was still in contact with him.

AB said that HB and SB took away her passport. [ 39 ] SB’s evidence is that AB would often go away secretly to use a tablet or someone else’s telephone. SB saw messages from the Accused saying he needed money from her for lawyers and that he wanted her to return. [ 40 ] Ultimately, AB got her passport back and returned to Edmonton. [ 41 ] Upon her return, AB reconnected with the Accused and split time living with her family and in with the Accused in his house.

AB and the Accused went out of town where AB would engage in sex work. [ 42 ] When cross-examined by the Defence at trial, AB said that she told her family that she was working camp rotations to explain her lengthy absences. [ 43 ] HB’s evidence was that when the family had all returned to Edmonton from the Middle East, after about a week AB said she was going to work and the Accused picked her up. Whenever she returned, AB was in a bad mood, and angry. [ 44 ] During this time period, HB also observed scarring on AB’s neck and bruises on her thighs and arms but did not see how those injuries arose.

Similarly, SB saw bruises on AB and what appeared to be a black eye. There were scratches and bruises on AB’s neck, arms and face. (

e) Regina: June, 2016 [ 45 ] AB and the Accused found themselves embroiled in another undercover police operation in Regina, Saskatchewan on June 25,

2016. [ 46 ] An undercover constable made arrangements – in response to an advertisement on backpage.com - to meet an escort named “Trina” at a hotel to obtain sexual services for one hour, at a rate of $260. The officer was directed to a particular room, where he and two other officers met AB. She was wearing lingerie. There was an open condom wrapper visible and no other personal items in the room. AB had no identification with her and said that her personal items were in the adjacent room. [ 47 ] Two of the officers went to the adjacent room.

The Accused opened the door but refused to identify himself even after he was arrested; he was finally identified by his identification which was found in the room. [ 48 ] That same day, AB was interviewed by the Regina police. The interview is in evidence (video and transcript). [ 49 ] AB was told that the interview could be used in evidence and warned that misleading the police during an investigation, obstructing justice or lying to them could result in criminal charges.

She swore to tell the truth. [ 50 ] AB told the interviewing officer that she and the Accused had travelled to Regina by car after flying from Edmonton to Saskatoon, where they had spent three nights. AB said that the purpose of visiting Saskatchewan was to engage in escorting activities. [ 51 ] AB said that had known the Accused for a couple of months and that she had worked as an escort prior to meeting him. She said she asked the Accused to work with her. At first, it was a security arrangement for her but their relationship became romantic.

She characterized their relationship as one of dating and love rather than “pimping”. She indicated that she had experienced moments of doubt about the relationship at times, but was confident at this point that the Accused loved her. [ 52 ] She said that the money she earned from escorting belonged to both of them. The Accused took care of the money because she was financially irresponsible, had bad credit and they wanted to save up for mutual dreams, including a vacation and a home renovation business.

She said that she had access to money when she needed it. [ 53 ] The Accused used the money to pay for the airline tickets to and from Saskatoon, the rental car and hotel rooms. He also drove. She emphasized that both of them were involved in placing ads and arranging client visits. [ 54 ] AB confirmed that the money she earned from escorting was the only source of funds for both of them. [ 55 ] AB told the interviewing officer that she was not aware that the Medicine Hat no-contact order applied outside of Alberta. The Accused gave an Undertaking to a Judge in Regina and was released.

The Undertaking prohibited the Accused from having contact with AB “in any way, directly or indirectly”. [ 56 ] AB’s makes a statement in this interview that, as I will discuss later, exemplifies her overall approach: “I don’t want him [the Accused] to get in trouble” (Regina Police Interview, line 704). (

f) EP Investigation & Accused’s Arrest [ 57 ] By November, 2016, HB was having difficulty contacting AB and filed a missing person report with EPS. [ 58 ] In this time frame, AB was in Lloydminster with the Accused until she returned to Edmonton on December 1, 2016. She had decided to end her relationship with the Accused and had spent time in Lloydminster trying to figure out how to get away from him. Additionally, she was not feeling well physically. [ 59 ] When AB returned, HB observed scars on her neck and bruises on her thighs and arms.

Her appearance was worrying. [ 60 ] HB and AB went to the police station on December 1, 2016. [ 61 ] Between December 1, 2016 and February 16, 2017, EPS officers interviewed AB four times. In between the second and third interviews, they searched the Accused’s residence under warrant. [ 62 ] In each of the EPS interviews, AB was cautioned concerning false statements, misleading evidence, perjury and so forth and confirmed her understanding that she needed to tell the truth. She affirmed to do so on each occasion. i. EPS Interview: December 1, 2016 [ 63 ] The December 1, 2016 interview lasted just over an hour.

It was held at a police station. [ 64 ] AB described her inexperience in relationships and provided a general history of her relationship with the Accused. She talked about the Accused’s jealousy if she talked to other men and her difficulty in extracting herself from the relationship. She said that she was tired of being with the Accused. She did not want to engage in sex work any more, and felt used, scared and manipulated. [ 65 ] AB described beatings, suffocation, threats with a gun, sexual coercion and the controlling behaviour that she had experienced at the Accused’s hands.

She said that there were times when she was forced to engage in sex work when she did not want to. [ 66 ] AB told the interviewing officer that the Accused handled the business end of escorting, placing ads, paying for hotels and other expenses. The Accused controlled the money she earned from escorting. It was not shared equally or equitably. [ 67 ] AB admitted that she had not told the Regina police the same information as she was disclosing in the December 1, 2016 interview:

QUESTION: Right, OK. And did you talk to them [the Regina Police]? AB: Yeah I talked to them. Q: And did you tell them all the, kinda like the same stuff you’re tellin’ me today or? AB: No. Q: No? What would you tell’em then? AB: I tell them exactly what I told them but I was kinda against them. Q: Right, OK. AB: I don’t remember what I said though. Q: So you weren’t, you weren’t as cooperative back then AB: Nnn Nnn. Q: as you are now? OK. AB: Yeah. Are we almost done? Q: Yeah we are almost done, yeah.

Is there anything else you can think of about [the Accused] or your situation right now that I should know before we finish off for tonight? AB: Right now I don’t. (December 1, 2016 EPS Interview, lines 1166 to 1179) [Emphasis Added] [ 68 ] AB was not feeling well. She had to stop the interview. She said that she would come back at another time and give a “better” interview and said she could not “think properly” (December 1, 2016 EPS Interview, lines 1181, 1184). Arrangements were made to continue the interview the next day. ii.

EPS Interview: December 2, 2016 [ 69 ] In this interview, AB recounted how she met the Accused and again described his jealous nature. She described the relationship as moving from working together, to a romantic relationship, and then to being abusive. [ 70 ] AB told the officer that her mother and sister tried to dissuade her from having the relationship, telling her that it was not good for her, that “you [AB] don’t even look the same, you don’t act the same, you’re not the funny [AB] that you were once upon a time and stuff like that” (EPS Interview, December 2, 2016, lines 312-313).

She thought her mother and sister were wrong about the Accused. AB said that she heard what she wanted to hear and that the Accused knew what she wanted to hear. [ 71 ] She also talked about deceiving the Regina police and trying to steer them away from the hotel room where the Accused was located. She said she lied to them when she said that she thought the Medicine Hat no-contact order did not apply in Saskatchewan. [ 72 ] Finally, AB talked about what led her to leave the Accused. They had been in Lloydminster and AB was sick. A client was impolite to her.

The Accused told her to see if she could rob the client. She did not do so, and the Accused said that they had to stay an extra day. AB had scheduled a medical appointment the next day. At this point, she had decided to end the relationship and return to Edmonton. iii.

Accused’s Arrest & Search of his home: December 5, 2016 [ 73 ] EPS officers went to the Accused’s home, which he shared with roommates, on the evening of December 5, 2016. [ 74 ] The address had been provided by AB, who also gave EPS information about the layout of the house, the location of the Accused’s room and a description of it. [ 75 ] According to the Agreed Statement of Facts entered as Exhibit 10, a police officer tried to get the Accused to come out of the home for about 13 minutes. Another person living in the home let the officer in.

Eventually, the Accused came to the main floor from upstairs and was arrested and taken to a police vehicle. He was Chartered, cautioned and searched. [ 76 ] Three officers searched the home under warrant. The following relevant items were seized:

a) Michael Kors watch receipt with AB’s name on it and the Accused’s telephone number;

b) A .44 Magnum Ruger handgun found between the mattress and box-spring of the bed in the Accused’s bedroom;

c) Enterprise car rental agreement with the Accused’s name on it and the address of the Accused’s home (AB had said there would be documents of this sort in the room);

d) Rental car keys from Enterprise;

e) Two “IHG Rewards Club” key cards, for hotel room entry; and

f) A white iPhone 6. iv. EPS Interview: December 7, 2016 [ 77 ] EPS Detectives interviewed AB in her mother’s home two days after the Accused was arrested and his residence was searched. [ 78 ] AB signed a Recorded Cautioned Witness Statement as well as a medical consent form. There is a video and a transcript of this interview in evidence. HB testified that during the interview she was in the home but left AB alone with the interviewing officers. She said that she did not compel AB to talk to the police at any time, through threats or other means. [ 79 ] AB gave a detailed account of why she had left the Accused and contacted the police, saying that:

a) Before leaving for Lloydminster, AB told the Accused that she did not want to do sex work anymore. The Accused was angry because he needed money for his lawyer and blamed her for his legal troubles. She felt forced to go on the trip.

b) While on the trip, AB was not feeling well. She made the Accused aware that she was sick every morning. She contacted a clinic and then booked an appointment for December 1, 2016.

c) While driving to Regina, a roommate of the Accused called and said that the Accused’s father – with whom he had not been in contact for some time - was trying to find him. Then another call came informing the Accused that the police were looking for him and AB.

d) AB called her mother, who said that she had informed the police about the Accused and reported her as missing.

e) While in Lloydminster, AB and the Accused got into a conflict because she would not take money from a client and the Accused said they had to stay an extra day. He wanted to earn more money.

f) AB returned to Edmonton and went to the clinic with her sister, avoiding the Accused.

g) She said that “right when I walked through the door my mom was like let’s go pretty much to the police station. So I went to the police station and told them everything” (December 7, 2016 EPS Interview, lines 37-40).

h) AB said that she had always been worried about getting the Accused in trouble but was tired of being hurt and at this point did not care about him going to gaol. She was in love with the Accused but did not think that he loved her.

i) She felt “so used, so sad” (December 7, 2016 EPS Interview, line 121), saying that “[the Accused] just hurt me way, way, way, way, way, way too much you know. He hurt me way too much, like physically, emotionally, mentally hurt me so much” (December 7, 2016 EPS Interview, lines 132-134) and then referenced the support of her mother and sisters and said that the knew she would be alright. [ 80 ] During this interview, the police took several photographs of AB, which show:

a) a quarter-sized mark on her elbow;

b) bruising on the left side of her neck;

c) scarring on right side of her neck below her chin (two scars);

d) a mark on AB’s right abdomen which appears to be a bruise or a discoloration (it is roughly triangular in shape); and

e) right lower leg bruises in a cluster, yellowish in colour [ 81 ] AB said that these marks resulted from physical violence inflicted on her by the Accused, which had largely healed by the interview date. v. EPS Interview: February 16, 2017 [ 82 ] The police had searched the Accused’s iPhone 6, which was seized by the police when they searched his residence. The interview occurred at a police station. [ 83 ] Four videos were extracted from the smartphone. These videos will be described in more detail later in this Judgment; in brief, the videos show AB naked, performing fellatio and analingus on the Accused.

He hits her, threatens her with a handgun and is verbally abusive. [ 84 ] AB watched the four videos during the interview. At first she says she did not remember them. At one point, AB asks the police officer to turn the video off. She cries. She continues watching. [ 85 ] AB said that she was not a willing participant in the activity in the video. She remembered the violent parts. She specifically agreed that the conduct in the videos was not voluntary. She said that she was scared.

[ 86 ] AB said that the incident in the videos happened shortly after she returned from the Middle East, probably after a fight and that this sort of thing happened “too many times . . . and it shouldn’t of [sic] happened” (February 16, 2017 EPS Interview, lines 258, 260). She stated that there were other occasions when she had to have sex with the Accused against her will and that he forced sex on her when she did not want it. (

g) Preliminary Inquiry: March 27 to 29 and April 3, 2018 [ 87 ] AB’s evidence at the Preliminary Inquiry was given over four days in late March and early April, 2018. [ 88 ] AB’s evidence on this occasion was unwillingly given and mostly inconsistent with what she had told the Regina police. It is not difficult to infer that she was motivated by a desire to help the Accused, who at this time was being held in custody at ERC. [ 89 ] The Accused and AB were having telephone conversations prior to, during and after the Preliminary Inquiry.

These conversations affected AB’s testimony. [ 90 ] AB testified that she and the Accused had worked together in what amounted to a joint business venture. They made joint decisions about where she would engage in sex work and when. They both placed advertisements. She did not discuss violence. [ 91 ] AB said that the reason she went to Lloydminster and worked while she had a health issue was to fulfill a joint plan to “scam these guys that wanted drugs” (March 27, 2018 Preliminary Inquiry Transcript, page 44, line 27).

She was given the choice to work or not while she was in the Middle East and on her return to Canada chose to work because she wanted the money. The Accused did not force sex on her, though he did ask for it persistently, and to this line of questioning AB eventually said that she did not know and did not remember. [ 92 ] Given how AB’s testimony was going, the Crown applied on the second day of the Preliminary Inquiry to cross-examine AB more broadly under s 9(2) of the Canada Evidence Act , RSC 1985, c C-5 with respect to her four EPS interviews.

The Court granted the application. [ 93 ] Under the Crown’s cross-examination, AB said she did not really know why she had lied in the prior statements to EPS. She offered various explanations, including that she was upset, angry and she was not in the “right state of mind”. [ 94 ] AB did however agree with a number of inculpatory propositions put to her by the Crown. She admitted having no money and that the Accused took the money she earned. She also acknowledged some acts of violence that she had described in the EPS interviews. [ 95 ] The next day, AB returned to a more evasive stance.

She claimed that she did not remember many things or did not know. The Crown applied under s 9(1) of the Canada Evidence Act and under common law to cross-examine AB as an adverse witness. That application was successful. [ 96 ] On the final day of the Preliminary Inquiry, the Crown completed its cross-examination of AB by playing each of the four cellphone videos for her. AB identified herself and the Accused as the individuals in the videos. [ 97 ] She testified that the videos portrayed a role play, and she was not scared. [ 98 ] Defence counsel at the time cross-examined AB.

She was cooperative and willing to answer questions asked by Defence counsel, agreeing with statements that were put to her. She agreed that she encouraged the Accused to help her with her sex work; she told the police what she thought HB wanted to hear because HB was within earshot during the December 7, 2016 interview in HB’s home and had threatened to tell AB’s father about AB’s situation. [ 99 ] Further, she said that she wanted to engage in the activities depicted in the videos and she had discussed them in advance with the Accused.

She denied that the Accused had ever beaten her with a belt. [ 100 ] The Accused was committed to stand trial on a revised set of charges. (

h) AB’s Trial Testimony [ 101 ] AB testified on 8 separate Trial days, from October 28 to 31, 2019 and on resumption of the Trial from January 21 to 24, 2020. AB was examined in chief, cross-examined by the Crown, cross-examined by the Defence and re-examined by the Crown. [ 102 ] Her testimony can be divided into two parts that do not purely coincide with these testimonial stages: her initial trial testimony and her final trial testimony. [ 103 ] In between these two parts, AB heard two ERC calls that changed the way that she gave evidence and the substance of the evidence itself.

She went from presenting as a reluctant, evasive and mostly exculpatory witness to a willing and at times enthusiastic mostly inculpatory witness. i. AB’s Initial Trial Testimony [ 104 ] During Examination in Chief, AB was less than forthcoming. She was uncooperative. Most of the time gave short and brusque answers. She had to be extensively prompted to answer questions which even then she would avoid answering, or reply that she did not remember, did not know or did not care. Sometimes she would give answers that were somewhat related to the question, but not entirely.

AB would agree to a particular point and then began disagreeing and (metaphorically) dragging her feet as soon as she figured out where the Crown’s questioning was going. There was an undercurrent of antagonism towards the Court and the Crown.

[ 105 ] For example, on October 29, 2019 during her second day of Examination in Chief, AB was questioned about one of her EPS Interviews where she had talked about the Accused abusing her if she refused to see a client: Q Okay. And you go on at 1009. Sergeant Kerr asks, "But could you describe a physical act, then? Like, how does he hurt you? How does he abuse you? How does he --" and you interject and state, "Like, he'd put -- he'd pull my hair and choke me and, you know, like, throw me around the room, kick me, and shit like that." You see that? A Yes. Q That's true, right? A Yeah.

Q So sometimes if you didn't open the door, he would pull your hair? A No. Q Sometimes if you didn't open the door, he would choke you? A No. (Trial Transcript, October 29, 2019, page 69, lines 27-40) [ 106 ] Following this exchange, the Crown read the same passage to AB from the Preliminary Inquiry. Q Okay. And then we go through that, going through page 73. And then what I want to start up on is at line 40 on page 73. And so I said to you, "Let me be clear. You had a choice. You could answer the door, or you could get in trouble from [the Accused]?" And you said, "Okay. Yeah." I said, "Right?

That's what you're saying here?" You said, "Yes." You see that? A I see it, yeah. Q That's true, right? A No. Q And then I went through, and I read some more from Sergeant Kerr about putting hands on you. And I said, "And what you're saying there is that the trouble you would get in for the yelling, it could be blaming you for not making money, or it could be him becoming violent with you?" And you said, "Okay." I said, "That's what you mean, right?" And you said, "Sure." You see that? A Yes. Q So that's what you meant in that passage with Sergeant Kerr, right? A He wasn't really getting violent. Q Okay.

Well, let's jump over to page 75, and this is where I read to you the passage that I just read to you before we went to this prelim transcript about pulling hair and choking and throwing around the room and kicking. And so then I said to you, "So I get your point. He didn't always get physical if you didn't answer the door, but one of the things he would do is get physical sometimes, right?" And you said, "Sometimes." You see that? A Yes. Q And that's true, right? A Yes.

Q And then I went through with you, "And when he would get physical, those are the things he would do, right?" And you said, "Yeah." You see that? A Yes. Q That's true as well, right? A Yeah. Q So sometimes he would pull your hair? A Yeah. Q And sometimes he would choke you? A Yeah. Q And sometimes he would throw you around the room? A Yes.

Q And sometimes he'd kick you? A Yeah. Q And sometimes he'd use other forms of violence? A Yes. Q So he would force you to work? A No. Q Well, [AB], we just went through the fact that if you didn't open the door, he would – A He wouldn't -- Q -- sometimes get violent with you. A -- physically force me to work.

I would choose to, obviously. (Trial Transcript, October 29, 2019, page 70, line 19 to page 72, line 4) [107] She admitted to specific acts, but then ended up saying that she was not forced physically to engage in sex work. [108] AB also asked questions to prevent herself from having to answer the questions asked or to delay answering. She accused theCrown of using “hearsay” to avoid answering questions. Here, she was asked about a text message that she sent to the Accused: Q And I think we already talked about this before, but there's also a text message.

You can go back to Exhibit 21, message number 116where you said, "You want to put a fucking -- fucking loaded pistol to my face?" You see that? A Yes. Q He threatened you with his gun? A I can't remember. Q I'm also going to suggest to you that you told your mother that he threatened you with a gun. A That's hearsay. (Trial Transcript, October 29, 2019, p 86, lines 3-16). [109] On October 29, 2019, I granted the Crown’s application to have AB declared a hostile witness and therefore subject to cross-examination by the Crown.

I based this on a holistic assessment of her attitude and answers and on some specific occurrences. TheDefence consented to the application. [110] In my oral decision on this point, I referred to Regina v. Coffin, (SCC), [1956] S.C.R. 191 as well as an articleby Justice David M.

Paciocco (“Confronting Disappointing, Hostile and Adverse Witnesses in Criminal Cases”, Criminal Law Quarterly59, page 301) and rather than follow the ladder approach I found AB to be a hostile witness, finding that AB was not giving evidencefairly and with a desire to tell the truth because of a hostile animus towards the Crown. [111] I found that the unfairness in the way AB was giving her testimony overlapped with a hostile animus. Mr. Badari, for theCrown, during his direct examination of AB, tried to trigger AB’s memory when she claimed failed memory. He made suggestions.

Atthe time I counted about 14 times where AB was offered an opportunity to refresh her memory through statements that she hadpreviously made, whether to the police or under oath or from other sources. She declined those opportunities, and I was satisfied that sheunderstood those opportunities. [112] AB was very clear and forthright about her affection for the Accused and what she wanted as an outcome in the trial: theAccused to be released and return home.

She had discussed the romantic elements of her relationship with the Accused. [113] Demeanour and attitude are not of course determinative of a witness’s veracity though they can be a factor.

In AB’s case, I didnot read too much into her change in demeanour over the course of her testimony, noting that she was testifying about uncomfortabletopics and had to watch the difficult video evidence in the courtroom. [114] I did however consider her testimony as a whole which was indeed evasive and showed that she did not want to answerquestions. [115] I referred to an instance where a particular ERC call between AB and the Accused was played that was clear in tone and wordsbut which had to be played multiple times before AB would answer: Q MR. BADARI: Just paused at 10:02.

What you said there was, "Why don't you think that I care about you", right? A I didn't hear that. Q Okay. We'll go back.

(AUDIO PLAYED) Q MR. BADARI: "Why don't you think that I care about you", right, [AB]? A I didn't hear that. Q Okay. We'll keep going. (AUDIO PLAYED) Q MR. BADARI: And what you said there was, "Like, why -- like, why do you think that I would hurt you", right? A I didn't hear that. Q Okay. I'll keep going. (AUDIO PLAYED) Q MR. BADARI: And what you said there was, "I would never, not intentionally", right? A I don't know. This all doesn't make sense.

There's, like, different words, and you're saying different things, and I'm hearing something completely different so -- Q That's why I said the transcript isn't helpful, so just listen to the call. A So then why do you have me looking at it? I don't get it. Q Because what I said to you, [AB], at the beginning of this was that the transcriber obviously had difficulty with this portion. That's why there's all these dots. A Okay. Well, it's confusing me, and I'm confused. You're saying something, I'm reading something, and then I'm hearing something all completely different. I don't get it. Q Okay.

So just listen to the audio, and tell me what you're hearing, okay? And we'll go back to the beginning at 9:50. (AUDIO PLAYED) A I don't understand what any of this says. Like, nothing. Like, I heard that, intentionally, and hurt. Those are the three words that I heard. I hurt, and I just don't want to go through this again, because you're literally pulling up the same recording, and I'm listening to the same thing. And then you want my ears to pick up something completely different, and it's not going to pick it up. And I'm kind of annoyed. Can we move on? THE COURT: What's your answer, then?

THE WITNESS: I don't know what he's -- THE COURT: What were -- THE WITNESS: -- asking me. THE COURT: He's asking you -- THE WITNESS: I heard -- THE COURT: -- what are you saying -- THE WITNESS: -- three different words. I heard three muffled – THE COURT: Let -- THE WITNESS: -- muffled -- THE COURT: Let me talk. THE WITNESS: Okay. Fuck. THE COURT: He's asking you what you're saying in this recording. What's -- THE WITNESS: I don't -- THE COURT: -- your answer?

THE WITNESS: -- know. THE COURT: Okay. That's the answer. THE WITNESS: Fuck, man. (Trial Transcript, October 31, 2019, pages 26 line 15 to 28 line 20) [ 116 ] She answered "I don't know" too many times to count and replied "I don't remember" about things that were fairly benign, such as the layout of the Accused’s bedroom and concerning her initial meeting with CEASE workers. On points that I referred to as “malign” in my oral decision, AB claimed a lack of memory: the firearm and the Accused’s violent behaviour are two examples. [ 117 ] The application was granted. [ 118 ] AB’s evasiveness continued.

AB was asked about her statement in the December 2, 2016 EPS interview where she said that the Accused would be violent with her if she was not complying with his directions. She said he would choke her. First, she said that he would not always be violent when he was angry. Then, she said it would not even happen “sometimes” and denied that he choked her. Her Preliminary Inquiry testimony was put to her where she had agreed that those violent acts had occurred. She ultimately said that she did not know or remember. [ 119 ] One of the clearest examples came on October 31, 2019. An ERC call recording is played.

There is no possible conclusion that can be drawn from AB’s demeanour on the call except that she was crying. The following exchange occurred: Q And you were crying when you said that, right? A I can't remember. Q Well, we just heard your voice, [AB]. A I don't know if I sounded like I was crying. Q You sounded upset at least, right? A I don't know what that was. (Trial Transcript, October 31, 2019, p 20, lines 6-13). [ 120 ] Later that same day, AB simply breaks down and gives up answering the questions as the Crown nears the end of its cross- examination: Q Okay.

Now, [AB], we've spent today going through a whole bunch of phone calls, so I'm sure you appreciate now that we can get all of [the Accused]'s phone calls from the Remand Centre, right? A I don't care. Q Even when he calls you from somebody else's account, we -- A I don't care. Q I want to give you a chance to be honest with the Court. A What? Q You've still been talking to [the Accused] over the past couple of weeks, right? A Yeah, because I love him. Leave me alone. Leave me alone. I don't want to do this shit anymore, man. I don't want to take a break. I don't want to come back tomorrow.

I don't want to take another 15 minute break and then be back here in fucking 20 minutes. I want this shit to be over with, and I want to go home. (Trial Transcript, October 31, 2019, page 64, lines 20-35). [ 121 ] On several occasions AB gave explanations that do not accord with common sense and human experience. After being played a recording of herself saying that she had been locked in a room by the Accused, there was this exchange: Q MR. BADARI: Just a little bit before I paused, there was a person who commented about being locked in a room several days. Did you hear that? A Yes. Q Who said that? A Me.

Q And what were you talking about? A I wasn't meaning physically locked in a room.

Q Okay. What were you meaning? A I was just in his room. Q When did this happen? A He went on a trip with his friend. Q Sorry? A He went on a trip with his friend. And I didn't go, so I decided to stay home for the whole weekend. Not physically locked in a room, but I was in a room all weekend when I could've been in Calgary with him.

That's what I meant. (Trial Transcript, October 28, 2019, p123, lines 16-35). [ 122 ] After being shown the video in which she performs fellatio on the Accused while he holds a gun, she says she does not remember whether he had the gun and struck her with it: Q So in the videos that we watched yesterday, we saw you performing, what you've described as, a blow job? A Yes. Q So oral sex on [the Accused]? A Yes. Q I'm going to suggest to you that you didn't want to do that that day? A No. I didn't. Q No, you didn't? A M-hm. Q Okay. And we saw you holding your head in the video.

I'm going to suggest to you that was because [the Accused] had struck you in the head with the gun? A I don't -- can't remember that. Q Okay. But he was holding the gun through most of it? A I can't remember. (Trial Transcript, October 29, 2019, page 65 line 36 to page 66 line 13) [ 123 ] AB was confronted with her December 7, 2016 EPS interview where she said that the Accused would shove her face into a pillow to the point where she could not get air, to get her to stop talking or otherwise render her submissive. She described his hands on her neck, choking her. Her response at trial was as follows: Q Okay.

So it seems clear to me that what you're talking about there is more than just putting a pillow on you but also putting his hand around your neck, right? A Yes. Q And that's what you mean by choking there, right? A I can't remember. Q He would strangle you, right?

A I can't remember. (Trial Transcript, October 29, 2019, p 82, lines 27-35). [ 124 ] A short time later, she said that she did not remember him threatening her with a gun after being read a text that she sent to him in which she said "[y]ou want to put a fucking -- fucking loaded pistol to my face?" [ 125 ] When given a list of names of people who were referenced in ERC calls in previous examinations, by name, she denied knowing any of them. [ 126 ] She did not want to testify. She grew angry at the Crown’s questioning, stating at one point: “I don't have time for this shit. And sorry. Court is not my priority.

I have a life and other things that are my priority” (Trial Transcript, January 21, 2020, page 25, lines 38- 39). ii. Two ERC Calls Are Played

[ 127 ] The trial adjourned on October 31, 2019. The Crown applied to re-open its Examination in Chief of AB on January 21, 2020. The Defence consented. [ 128 ] AB had previously testified that she had told the Accused during calls that she was concerned that he was talking to other women.

The Accused assured her that he had no other romantic interests and that he did not intend to end their relationship after the criminal case concluded. [ 129 ] During the re-examination, two calls were played: the first was between a female and the Accused; the second was between the Accused and his friend, TF. [ 130 ] The Crown asked AB about the Accused’s relationship with another woman then played a call between the Accused and an unidentified woman that took place on October 2, 2019. The following exchange between the Crown and AB took place: (AUDIO PLAYED) Q MR. BADARI: Just pause right away.

There was a man there that said, "Hi, Boo. I don't have that much time." A That's [the Accused]. Q Okay. Thank you. (AUDIO PLAYED) Q MR. BADARI: So just pause at 1:14. So just before I paused, there was a man saying – A That's very funny by the way, that conversation. Q So just before I paused, there was a man saying, "I appreciate you. Thank you so much" -- A M-hm. "I love you." "I want to kiss you when I come home." Blah, blah, blah, we heard it all. Okay. Q Okay. THE COURT: Let Mr. Badari finish his question. Okay, ma'am. A Go ahead. Q MR. BADARI: So what he said was, "I appreciate you. Thank you so much.

I love you" -- A You're a piece of shit. Q -- "I can't wait to see you and give you a big hug and a kiss, maybe some other shit. We'll keep it PG for right now." A Sure. What is "PG"? Is that what was said? Q Did you hear that? A Can you play it again? Q Sure. Beginning again at 1:05. (AUDIO PLAYED) Q MR. BADARI: Did you hear that? A Yes, I heard it. Q Okay. So that was [the Accused] that said that; right? A Yes, that was [the Accused]. Q Do you recognize the woman's voice in that call? A Nope, I don't. … Q Okay. I'm going to suggest to you that that person was [A]. A Okay. Q Do you know who [A] is?

A I don't know who [A] is.

Q Okay. So go on to one last call, [AB]. A Is it with [A]? Q No, it's not. A Interesting. You find new shit up every single fucking day of your life when you wake up. Figure your shit out. I'm glad I came to court today. (Trial Transcript, January 21, 2020, page 41, line 37 to page 43, line 3; page 43 lines 23-34) [ 131 ] AB reacted emotionally, with intense anger. AB called the Accused, in open court, “a piece of shit”. She said that she was “glad” to be in court. She had appeared anything but “glad” up to this point. [ 132 ] The second call, which took place on November 2, 2019, is between the Accused and TF.

AB had earlier denied that she knew TF. The Crown played and then read from the transcript of that call. The Accused says: I can’t wait to just move on. I’m going to wait for that month, but then as soon as that thing’s done, everyone’s cut off. You know what I’m saying? I’m just – fuck it. I’m over it, Bro. (2019 ERC Call, November 2, 2019, lines 65-67) [ 133 ] Then, this exchange occurs between the Crown and AB: Q Okay. So I'm just going to replay the last little bit of that call we just left off on, so starting at 1:39. (AUDIO PLAYED) Q MR. BADARI: Okay. So pausing at 1:51.

So there's a man there that said: (By reading) I can't wait to just move on. I'm going to wait for that month, and then as soon as that thing's done, everyone's cut off. You know what I'm saying? I'm just -- fuck it. I'm over it, Bro. You heard that? A Yes, I heard that. Q And that was [the Accused]; right? A Yes. Q Thank you. I have no further questions, [AB]. A Actually, I wanted to say something. I might have been untruthful about some things. Q You might have been untruthful saying some things? A Yes. Q Okay. What things have you been untruthful about? A I did get letters. Q Okay. A I do know who [TF] is.

He gave me the letters. And yeah. Q And what did the letters say? A Just a whole bunch of bullshit about "I love you," and "I can't wait until I come home and see you," and just like being truthful when I've never lied actually once ever. And, yeah, that's all I'd like to say. Q Okay. And you say you never lied once ever. What are you referring to? A Yeah. When the police originally came to my house when I was in at my mom's, never once did I ever lie to them or tell them anything wrong, ever. So there's that. Q So you've talked about when the police went to your house.

What about when you went to the police station and talked to Sergeant Kerr? A Yeah, I was honest with Cory, and I did not lie to him about anything, and I told him the truth about every single thing that happened to me, straight up. Q Thank you, [AB]. A You're welcome. Q Thank you. I have no further questions, Sir.

(Trial Transcript, January 21, 2020, page 49, line 31 to page 50, line 37) [Emphasis Added] [ 134 ] There are ERC calls referencing letter communications that the Accused was trying to forward through third parties to AB. She said that the Accused wrote to her saying that nobody was supporting him and he needed her. The correspondence was delivered through TF. iii. AB’s Post-ERC Call Testimony [ 135 ] AB’s evidence underwent a dramatic shift when she heard these two ERC calls. She went from denying or minimizing the Accused’s criminal conduct to being hostile towards him. [ 136 ] The Defence cross-examined AB.

She gave longer answers and was more articulate and eager. The one-word answers were mostly gone as was her hesitancy. By the conclusion of her trial testimony, AB had reverted, in general material respects, to the version of events that she related in her EPS interviews in December, 2016 and January, 2017 and to inculpatory portions of her Preliminary Inquiry evidence. [ 137 ] Some key points that emerged during the Defence’s cross-examination include: i. Some of the things AB told the Regina police about her relationship with the Accused and other things were true and some were not.

She was “trying to have [the Accused’s] back” (Trial Transcript, January 22, 2020, page 15, line 5). ii. AB said that she was manipulating the officers in Regina and lying to them. iii. During the Regina interview, AB said that she was “ . . . scared, number 1; and I wanted to try and do everything I possibly could to help [the Accused] because I thought he actually cared about me.

Turns out, he really doesn’t . . . [a]nd I’ve been questioning it since the day that I met him, but now I know for a hundred percent certain that for the whole four, five years that I’ve known him, he does not care about me whatsoever.” (Trial Transcript, January 22, 2020, page 13, lines 20-22, 35-37) iv. She said that “the reality of it was that I was getting pimped” (Trial Transcript, January 22, 2020, page 19, line 23).

The Regina police tried to suggest to her that she was being used, but she wanted to be with the Accused, and was “ . . . literally getting mind-fucked by this guy for what reason, just to literally do the same shit and not get shit out of it” (Trial Transcript, January 22, 2020, page 20, lines 37-38). v. AB calls the Regina interview “this Regina big, fat lie interview” (Trial Transcript, January 22, 2020, page 35, line 22). She said that she was “covering his [the Accused’s] ass” . . . [t]hat’s what I was doing” (Trial Transcript, January 23, 2021, page 46, line 13).

She said that she lied to the police because she was “scared” and did not want to get the Accused into trouble. vi. She said that “[t]he only time I lied was to have his back” (Trial Transcript, January 23, 2021, page 21, line 16). vii. [The Accused] was “manipulating me the whole time he was in jail, trying to send me letters, phone calls, this and that, trying to talk to me about – telling me, Oh, I love you, and I can’t wait to see you” (Trial Transcript, January 22, 2020, page 15, lines 5-7). viii.

She did not want to do the sex work, but was caught up in the lifestyle, working together like “Bonnie and Clyde and some street gangsters and we’re going to do this and have a lot of money. Obviously that’s, like, something everybody would probably dream of, but . . .

I should have told it to somebody else that’s actually going to take care of me and maybe actually pay my phone bill or, like, pay my credit card or like, you know, not have to, like, beg for shit” (Trial Transcript, January 22, 2020, p 43, lines 20-22, 25-27). [ 138 ] During this final trial testimony, AB gave evidence that she went from escorting part-time to doing it full-time after she met the Accused. The Accused controlled the money and decided if she was allowed to leave the house.

He would manipulate her by begging her not to leave him, which was what she wanted to hear (Trial Transcript, January 23, 2021, p 13 lines 23-29). [ 139 ] The Accused would also use emotional control to ensure that she would not leave, yelling and arguing while they were in the house which embarrassed her in front of the others who were there. He would persuade her with affection to work. He would keep her in a hotel for several days when she did not want to be there.

She would be fed but not have ready access to money except when he might give her some money to go to the mall. [ 140 ] Despite all of this, she loved him and she admitted that she still loved him at the time of the Trial, and that is what motivated her to stay with him: But just try and fucking love him to the point where I literally would go sleep with other guys to bring him money, what he wanted from him just for me to be with him. That's so sad. And I would never in my life. (Trial Transcript, January 24, 2020, p 23, lines 5-8) IV. Threshold Legal Principles

[141] There are several foundational legal principles that are particularly engaged in this case:

a) the burden and standard of proof;

b) the appropriate approach to the evidence;

c) myths and stereotypes;

d) the general approach to assessing witness credibility;

e) the law on Vetrovec witnesses; and

f) credibility assessments for recanting witnesses. [142] I will address each of these in turn. (

a) Burden and Standard of Proof [143] The Accused is presumed to be innocent until the Crown has satisfied its burden to prove his guilt on a charge or chargesbeyond a reasonable doubt. [144] A reasonable doubt is based on reason and common sense, and not on emotion or imagination or frivolous considerations andcan arise from the evidence or from an absence of evidence. Probable or likely guilt is not enough. The benefit of any doubt must beextended to the Accused.

It is not proof to absolute certainty, but it is closer to that point than a balance of probabilities (R v Starr, 2000SCC 40 at para 242). [145] The principles applicable to all criminal trials in Canada were succinctly and clearly set out in R. v. Lifchus, (SCC), [1997] 3 SCR 320 [Lifchus]: 13 The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to thepresumption of innocence . . . the term is of fundamental importance to our criminal justice system.

It is one of the principal safeguardswhich seeks to ensure that no innocent person is convicted. . . [a] fair trial must be the goal of criminal justice. [146] The Court in Lifchus summarized the contents of a jury charge on the burden of proof and presumption of innocence. Thisstatement of the law is equally valuable in a judge alone trial such as this one, where judges must instruct themselves. (

b) Approach to the Evidence [147] With the exception of instant messages (“IMs”) sent by AB to the Accused on October 13, 2016, which I will discuss later, theDefence conceded that the police interviews, ERC calls and AB’s Preliminary Inquiry Evidence were all admissible as set out in theCrown’s Submissions on the Prior Statement Application dated April 20, 2020 (Defence Brief on Prior Statement, para 4). [148] The Regina police statement was admitted based on the principled exception to hearsay but not as proof of the truth of itscontents. [149] The Accused’s IMs on October 13, 2016 were admitted as party admissions. [150] The EPS interviews were admitted by consent for the truth of their contents under the principled approach to hearsay.

AB’sPreliminary Inquiry evidence and the ERC calls are admissible in accordance with the Crown’s Brief. [151] The Supreme Court of Canada has stated that “[t]he paramount question in a criminal case is whether, on the whole of theevidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” (R v Vuradin, 2013 SCC 38 at para 21). [152] The question of what “whole of the evidence” means in this case was raised in written submissions and in oral argument. [153] The Defence seems to interpret the “evidence as a whole” requirement as stated in R v Morin, (SCC), [1988] 2SCR 345 at 359-62 [Morin 1988] and R v Villaroman, 2016 SCC 33 [Villaroman] to mean that certain key groupings or individualpieces of evidence must be proven beyond a reasonable doubt and then each must be assessed “as a whole” to determine whether theburden of proof beyond a reasonable doubt has been met.

That is, the standard of proof is to be applied to the whole of the evidence butitems of evidence that are determinative must be proven beyond a reasonable doubt, qua items. [154] The Defence articulates this position in its Closing Submissions on the Law where it reasons that the direction from theSupreme Court of Canada in Villaroman about how to assess circumstantial evidence means that “[a]ll factual findings which are reliedupon to support an inference of guilt in this case must be factual findings that rise to the level of being proven beyond a reasonabledoubt” (at para 41, italics in original).

The Defence also restates this position in its Surrebuttal Brief, where it expresses its concern withthe Court “rely[ing] on pieces of evidence which are not themselves proven beyond a reasonable doubt” (Defence Surrebuttal Brief atpara 14; see also para 11). [155] It is unarguable that AB provided inconsistent evidence, externally to the trial proper and within the trial itself. The Defencesuggests that AB’s evidence is one group or type of evidence that must be assessed as a whole. One of the Defence’s main arguments isthat the Court must consider AB’s evidence as a whole when assessing her credibility.

That evidence is unreliable and not credible. Itfollows that AB’s evidence as a whole must be credible or it cannot ground conviction.

[156] The Defence argument effectively means that the trier of fact cannot parse AB’s evidence and determine that AB is believableon one point or in one portion of her evidence but not on others. Thus, my understanding of Defence’s argument is that all factualfindings which are inculpatory must themselves be proven beyond a reasonable doubt. [157] With all respect, I disagree. [158] Villaroman is not directly relevant to this question.

It does not deal with the issue of how to assess pieces of evidence – either asindividual pieces, as groupings, or as a whole: its focus is on how circumstantial evidence should be weighed in determining whether theCrown has proven its case beyond a reasonable doubt. The Crown’s case in Villaroman depended mainly on circumstantial evidence.Unlike Villaroman, the case at bar does not primarily depend on circumstantial evidence. This case has direct evidence from AB as wellas other evidence that is not circumstantial.

The Supreme Court of Canada gave clear direction in Morin 1988 and its subsequentdecisions about assessing the whole of the evidence (as outlined below) and I cannot read Villaroman as being inconsistent with Morin1988. [159] Considering the admissible evidence as a whole is consistent with the Court’s direction in Morin 1988, where the jurisprudencewas synthesized and the Court held that “the law lays down only one basic requirement: during the process of deliberation the jury orother trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond areasonable doubt” (Morin 1988 at 361-62). [160] The Supreme Court of Canada reiterated this principle in subsequent cases including R v Morin, (SCC), [1992]3 SCR 286 [Morin 1992]; R v Ewanchuk, (SCC), [1999] 1 SCR 330 [Ewanchuk]; R v G(SG), (SCC), [1997] 2 SCR 716 [G(SG)]; R v Ménard, (SCC), [1998] 2 SCR 109; R v White (1947), (SCC),89 CCC 148 (SCC) [White])). [161] In R v JMH, 2011 SCC 45 [JMH] it was held: [31] The underlying legal principle is set out in another decision called R. v.

Morin, (SCC), [1988] 2 S.C.R. 345. Theprinciple is that it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt;the evidence must be looked at as a whole: see, e.g., B. (G.), at pp. 75-77 and 79. However, Sopinka J. sounded an important warningabout how this error may be identified. It is a misapplication of the Morin principle to apply it whenever a trial judge fails to dealwith each piece of evidence or record each piece of evidence and his or her assessment of it.

As noted in Morin (1992), at p. 296, “Atrial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, thefailure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect.” Thiswas the basis of intervention relied on by the Court of Appeal, but as noted earlier, a fair reading of the trial judge’s reasons does notsupport this finding of legal error. [32] A trial judge is not required to refer to every item of evidence considered or to detail the way each item of evidence wasassessed.

As Binnie J. pointed out in Walker, “Reasons are sufficient if they are responsive to the case’s live issues and the parties’ keyarguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue” (para.20). Walker also clearly holds that the adequacy of a trial judge’s reasons is informed by the limited grounds for Crown rights of appealfrom acquittals (paras. 2 and 22).

As Binnie J. succinctly put it, “Caution must be taken to avoid seizing on perceived deficiencies in atrial judge’s reasons for acquittal to create a ground of ‘unreasonable acquittal’ which is not open to the court under the provisions ofthe Criminal Code” (para. 2). [Emphasis added] [162] It is not the case, as suggested by the Defence, that single pieces of evidence must be proved beyond a reasonable doubt.

Thegoverning principle is that “the criminal standard [is] to be applied to the ultimate issue and not in the weighing of individual pieces ofevidence” (Morin 1992 at 295). [163] These principles were recently referred to by our Court of Appeal in R v Lemay, 2020 ABCA 365: “‘it is an error of law tosubject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole’” (atpara 27, citing JMH at para 31 [emphasis added]). [164] By extension, the Court must assess a witness’s credibility in light of all the evidence (Ewanchuk at paras 29-30; G(SG) atparas 72-37).

Items of evidence – whether individualized or grouped - can be unlinked from each other because they may arise fromdifferent contexts, forums and situations. [165] Thus, the Court is required to assess the whole of the evidence – that is, all of the admissible evidence at trial – to determinewhether the Crown has proven the elements of the offences charged on the Indictment beyond a reasonable doubt. The criminal standardof proof must be applied to that ultimate issue, rather than to individual pieces of evidence. (

c) Myths and Stereotypes [166] The focus of fact-finding must be on the evidence. Expectations or assumptions about human behaviour – including thebehaviour patterns of victims or accused persons in particular circumstances - must be avoided, particularly where credibilitydeterminations could be undermined. [167] Myths and stereotypes alter the higher fact-finding function of the Court and present a high risk to both the presumption ofinnocence which is the Accused’s right and the dignity and human value of AB. They are not relevant to the case that is being decided.They are not evidence.

They can push the trier of fact away from facts and into supposition and speculation; this is an error of law (R vARD, 2017 ABCA 237 [ARD] at para 9 aff’d R v AJRD, 2018 SCC 6 [AJRD]).

[168] Forbidden reasoning includes the types of pre-judgments that have historically been attached to sexual assault cases.

This hasbeen discussed extensively in the jurisprudence in this country, particularly in the line of cases from R v Seaboyer, (SCC), [1991] 2 SCR 577 [Seaboyer] and running through Ewanchuk, R v JA, 2011 SCC 28 [JA] at para 64, AJRD, and including(without limitation) R v Barton, 2019 SCC 33 [Barton] at para 1 and R v Goldfinch¸2019 SCC 38 [Goldfinch]. [169] The legal trajectory was described by Martin, J. (as she then was) in R v CMG, 2016 ABQB 368 (at paras 60-63): Broadly speaking, myths and stereotypes rest on untested and unstated assumptions about how the world works or how certainpeople behave in particular situations.

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

It was saidin R v Seaboyer; R v Gayme, (SCC), [1991] 2 SCR 577 at 654: Like most stereotypes, they operate as a way, however flawed, of understanding the world and, like most such constructs, operate at alevel of consciousness that makes it difficult to root them out and confront them directly. This mythology... influences a judge or juror’s perception of guilt or innocence of the accused and the “goodness” or “badness” of thevictim, and finally has carved out a niche in both the evidentiary and substantive law governing the trial of the matter.

The Supreme Court “has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as they jeopardizethe courts’ truth-finding function”: R v AG, 2000 SCC 17, [2000] 1 SCR 439 at para 2. A trial is a truth-seeking process and myths andstereotypes distort that process and undermine that goal.

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

The use of myths and stereotypes also threatens the constitutional rights of complainants and engagestheir rights to life, liberty and security of their person, as well as their sex equality rights: sections 7, 15 and 28 of the CanadianCharter of Rights and Freedoms.

Given that sexual offenses are under-reported and occur mostly against women and male and femalechildren, Justice L’Heureux-Dubé explained “the need to affirm principles of equality and human dignity in criminal law by addressingthe problem of myths and stereotypes about complainants in sexual assault cases”: R v AG at para 1 in concurring reasons, and also R vO’Connor, (SCC), [1995] 4 SCR 411.

Discredited myths and stereotypes can be invoked to determine the presence or absence of consent, and/or employed when assessing thecomplainant’s credibility, both generally and when deciding whether the circumstances were as … described. [Emphasis Added] [170] The trier of fact must strenuously avoid resorting to, importing or otherwise relying – implicitly or explicitly – on myths andstereotypes related to sexual assault victims and accused persons, and, particular to this case, any myths and stereotypes that mightadhere to sex workers and those who work with them.

Close attention must be paid to avoiding myths, stereotypes and other pre-conceived ideas about how a complainant in these situations might react to sexual violence, violence generally, certain sexual acts suchas anilingus or BDSM activities or role-playing. [171] The Court must also avoid the myths and stereotypes related to victims remaining in contact or even in relationships withalleged perpetrators (ARD at para 42; R v CAM¸ 2017 MBCA 70 at paras 47-53) as well as the “promiscuity” of the victim (Goldfinchat para 45). [172] The Supreme Court of Canada’s instructions to trial courts in Barton about dispelling myths and stereotypes about Indigenouswomen who perform sex work are also instructive for cases like the present one, where the female complainant is not Indigenous but wasa sex worker.

The Supreme Court exhorted trial judges to reject the following stereotypical assumptions (at para 201) that people in AB’sposition: • are not entitled to the same protections the criminal justice system promises other Canadians; • are not deserving of respect, humanity, and dignity; • are sexual objects for male gratification; • need not give consent to sexual activity and are "available for the taking"; • assume the risk of any harm that befalls them because they engage in a dangerous form of work; and • are less credible than other people. [173] The s 276 regime in the Code was specifically addressed in pre-trial and mid-trial rulings.

Prior to trial, the Crown and Defencebrought applications under Seaboyer and s 276 (respectively). I gave an oral ruling on October 21, 2019 in advance of AB’s testimony. [174] The s 276 ruling was revisited during the trial: R v PO, 2020 ABQB 647.

I applied R v RV, 2019 SCC 41 where it was held thats 276 rulings can be “revisited and reopened during the course of a trial” (R v PO, 2020 ABQB 647 at para 9) and Barton whereMoldaver J said at para 65 that “there may be circumstances in which it would be appropriate for the trial judge to reopen a s. 276 rulingand hold a new hearing to reconsider the admissibility of prior sexual activity evidence”.

[175] I held that the evidence in question remained inadmissible. It ran the risk of offending the twin myths in s 276(1)(

a) and (

b) ofthe Code, did not evince specificity and materiality, and had limited relevance. Finally, it lacked the substantial probative value requiredby s 276(2)(d). [176] I was also urged by Defence counsel in argument to avoid all preconceptions and stereotypes about the “pimp/prostitute”relationship. I wholeheartedly agree. Stereotypes and myths must not be applied to victims or to accused persons: R v Quartey, 2018ABCA 12; aff’d 2018 SCC 59 [Quartey].

This includes those typically associated within individuals involved in the sex trade. [177] However, I am bound to consider and follow the Supreme Court of Canada’s decision in R v Downey, (SCC),1992 2 SCR 10 [Downey]. [178] In Downey, Cory J stated that “the reluctance of prostitutes to testify against pimps is well documented” (para 61) and observed:“[s]trangely, despite the abusive and corrosive relationship that exists between the pimp and prostitute, many prostitutes are stronglyattached to their pimps and truly believe that they are in love with them” (Downey at para 55). [179] I must consider Cory J’s comment in the context of the evidence as a whole.

Downey allows me to take judicial notice that inthis factual matrix, a complainant might behave counterintuitively and be reluctant to give evidence against an Accused. However, to gofurther and make assumptions about actual underlying facts because AB and the Accused worked together in the sex trade, with ABbeing the one providing sexual services for consideration, would pull me away from the actual evidence. Such categorization is improperand erroneous and requires caution. (

d) Assessing Credibility [180] Assessing AB’s credibility is of critical importance. She is the principal witness called by the Crown. [181] I approach this part of this Judgment by first discussing the general approach to assessing witness credibility in a criminal trial,including the avoidance of preconceptions about individuals and their situations.

I then address two specific credibility assessment issuesthat presented themselves in this trial, both on the evidence and in argument from the Crown and the Defence: the applicability of theprinciples in Vetrovec and the particular challenge presented by a recanting witness. i. General Approach to Assessing Witness Credibility [182] Many factors must be considered and balanced when assessing the credibility of a witness. Each case and each witness isunique.

There are no genuine universals. [183] Some of the general principles on how to assess witness credibility are helpfully summarized inMcWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2019) (McWilliams’ Evidence) (at 30.20.20): • Assessing witness credibility is more of an art than a science (R v S(RD), (SCC), [1997] 3 SCR 484 at para128). • There is no formula to determine whether a witness is credible. • Triers of fact must consider all the evidence (White at 151) that is relevant to assessing credibility and should not make credibilitydeterminations on the basis of simply one factor alone (for the risks of finding one factor determinative, see McWilliams’ Evidence at30.30.50 and 30.30.60). • Triers of fact should use their life experiences as part of this assessment (R v Marquard, (SCC), [1993] 4 SCR223 at para 49: “[c]redibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial,combined with experience, logic and an intuitive sense of the matter”). • Overall, the key inquiry is whether the witness is worthy of belief, trying to be truthful, and not deceiving the court. • The trier of fact can give different weight to different parts of the witness’s testimony (R v Howe, (ON CA) atpara 44). [184] The case law outlines several (non-exhaustive) general factors for assessing witness credibility (also found in McWilliam’sEvidence,

chapter 30): • Evidence of bias; • Motive to lie, including relationships impacting witness’s truthfulness; • Interest in the outcome; • Demeanor; • Confirmatory evidence; • Character evidence; • Lay opinion evidence; • Expert evidence;

• Prior inconsistent statements; and • Internal consistency/inconsistency. [185] In R v Tash (2013 ONCA 380 at paras 40-43), the Ontario Court of Appeal gave guidance on how to assess witness credibility,emphasizing considerations of bias or corruption, the witness’s character, proof through other witnesses of material facts, the witness’semotions and feelings, self-interest, hostility and attitude towards the Accused, character for truthfulness, prior deceptive behavior. Thisis not an exhaustive list. [186] These factors are consistent with the general instructions provided to jurors in R v Filion ( (ON SC) at para27): • Does the witness seem honest? Is there any particular reason why

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