R v AT, 2021 ABQB 537

Court of Queen’s Bench of Alberta Citation: R v AT, 2021 ABQB 537 Date: 20210715 Docket: 200063741Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - AT Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify THE VICTIM must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on September 21, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment

of The Honourable Madam Susan L. Bercov _______________________________________________________ I. Introduction [1] The Accused, AT, was the complainant PK’s music teacher in grade 9. In the summer following PK’s graduation from grade9, AT and PK continued to see one another and developed a personal relationship. This relationship included engaging in sexual activity.PK was not able to legally consent to the sexual activity because he was 15- years-old at the time. [2] About two years after the sexual activity, PK disclosed the sexual activity to his mother.

This led to AT being charged withsexual assault and sexual interference with a minor. [3] Both AT and PK testified during the trial. Although they agreed that sexual activity occurred, their evidence differed on howmany times it occurred, and how the sexual activity came about. [4] PK testified that there were numerous incidents of sexual activity during the summer and early fall that both parties willinglyparticipated in. He specifically recalls three incidents of vaginal intercourse: (1) at AT’s cousin’s house; (2) in AT’s car at the EnochReserve; and (3) in the instrument room at the school.

In addition, he testified that there were several occasions where AT performed oralsex on him in AT’s car. [5] AT acknowledged two occasions of sexual activity between her and PK: one instance of vaginal intercourse at her cousin’shouse and one time where she performed oral sex on PK in her car. AT testified she did not willingly participate during either occasion.Both times, it was PK who forced sex on her. AT denied any other sexual activity. [6] I have no doubt that AT engaged in a relationship with PK that was inappropriate.

Continuing to see PK after he graduatedfrom grade 9, spending time with him alone, giving him rides in her car, having lunch with him and discussing personal issues with him,crosses the boundaries of acceptable conduct between a teacher and a 15-year-old former student. [7] Although AT’s conduct was clearly improper, this is not the issue I must decide. I must decide whether AT’s conduct iscriminal. This turns on whether I am satisfied, based on the evidence, that the Crown has proven beyond a reasonable doubt that ATintentionally touched PK for a sexual purpose. [8] PK and members of his family gave evidence.

They shared their experiences with residential schools, the criminal justicesystem and systemic racism. I accept the evidence of their experiences and the impact of these experiences on their faith and trust in thecriminal justice system. I have considerable empathy for the injustices that PK’s family and other Indigenous Canadians have faced.Notwithstanding my sympathies, I must decide this case based on the evidence. [9] In this case, there are no text messages. There are no emails. There is no security footage or digital footprints. There is noDNA evidence.

There is no other witness to the alleged sexual assaults. The evidence is the contradictory testimony of AT and PK.Accordingly, whether I am satisfied that AT intentionally touched PK for a sexual purpose turns on how I assess the credibility of ATand PK. [10] The issues I must decide are: 1. Are AT and PK credible witnesses? 2. Did AT intentionally touch PK for a sexual purpose at her cousins’ house? 3. Did AT intentionally touch PK for a sexual purpose in her car following the cousin’s house? 4.

Did AT intentionally touch PK for a sexual purpose on any other occasions? [11] What the Crown must prove is the same for each instance of alleged sexual activity. For each incident, the law requires that Iapproach my analysis using certain fundamental principles. Accordingly, I will first set out these fundamental principles and theelements of the offences the Crown must prove. I will then analyze separately the two occasions when AT admitted that sexual activityoccurred, at her cousin’s house and in the car one week after. Finally, I will analyze the other allegations of sexual activity that ATdenied.

I will analyze all these allegations to determine if the Crown has proved the elements of the offences. II. Fundamental Legal Principles 1. Proof Beyond a Reasonable Doubt [12] AT is innocent until proven guilty. She bears no burden to prove her innocence. It is the Crown who has the burden of provingthat AT is guilty. Further, the Crown must prove each essential element of the offence beyond a reasonable doubt. A reasonable doubt isa doubt for which one can give a reason, so long as the reason given is logically connected to the evidence. The standard is not absolutecertainty.

The standard is one that excludes all “reasonable” doubts about innocence, doubts that are not mere speculation, or imaginaryor frivolous, or based on sympathy or prejudice: R v Lifchus, (SCC), [1997] 3 SCR 320, at para 31.

2. Credibility and the Burden of Proof [13] To ensure that the reasonable doubt standard is applied to credibility, the law as set out in R v W(D), (SCC),[1991] 1 SCR 742, clarified in R v Ryon, 2019 ABCA 36, and amended in R v Achuil, 2019 ABCA 299, leave to appeal dismissed (SCC), requires that I approach the evidence in the following fashion: (

a) If I believe AT’s evidence denying guilt (or any other exculpatory evidence to that effect), or even if such evidence is notbelieved but still leaves me with a reasonable doubt that it may be true, I must acquit. (

b) While I should attempt to resolve conflicting evidence bearing on the guilt or innocence of AT, this trial is not a credibilitycontest requiring me to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, I am unable todecide whom to believe, I must acquit. (

c) Even if I completely reject AT’s evidence (or other exculpatory evidence), I may not simply assume the Crown’s version ofevents must be true. Rather, I must carefully assess the evidence I do believe and decide whether that evidence persuades me beyond areasonable doubt that AT is guilty. Mere rejection of AT’s evidence (or other exculpatory evidence) cannot be taken as proof of AT’sguilt. [14] I must not consider either the evidence of AT or the evidence of PK in isolation.

The evidence of each must be considered inlight of the evidence as a whole: R v FJC, 2018 BCSC 1443, at paras 38 – 39. [15] I must apply the same standards of assessment to the evidence of AT and PK (keeping in mind that the Crown bears theburden of proof and that AT need only raise a reasonable doubt respecting an element of the offence to secure an acquittal). I should notimpose an elevated or more scrupulous standard to the testimony of PK than the testimony of AT: R v SMC, 2020 ABCA 10 at para 20. 3.

Credibility, Myths, Stereotypes, and Systemic Racism [16] This case turns on my assessment of the reliability and credibility of AT and PK. Reliability refers to a witness’s ability toaccurately recall events. Credibility refers to a witness’s desire to tell the truth. [17] I recognize that the criminal justice system has not always been free of implicit bias based on racial stereotypes. Everyparticipant in the criminal justice system at every step is entitled to be treated without regard to their race.

Every witness has the right tohave their credibility assessed without regard to racist stereotypes. [18] I must not rely on myths and stereotypes of expected conduct of a victim of sexual abuse to assess credibility. Assumptionsabout the post-abuse conduct of a victim of sexual abuse, standing alone, should never give rise to an adverse inference: R v ARD, 2017ABCA 237, aff’d (sub nom ARJD) 2018 SCC 6 (ARD). [19] PK is the complainant. He is the victim of alleged sexual abuse. However, AT testified that at the cousin’s house and in thecar after the cousin’s house, it was PK who sexually assaulted her.

What this means is that notwithstanding that AT is the accused andPK is the complainant, both AT and PK are entitled to an assessment of their credibility free of impermissible myths and stereotypes: R vChen, 2020 BCCA 329, para 25. [20] I must caution myself against using the following post abuse conduct to draw an adverse inference: • Neither AT nor PK reported the alleged sexual assaults shortly after they occurred. PK disclosed them to his mother about twoyears after the alleged events occurred. AT told no one.

In assessing the credibility of AT and PK, the mere fact that neither reported thealleged assaults to others shortly after the events is not a proper basis to found an assessment of credibility: ARD, para 42. • AT continued to see PK after he allegedly sexually assaulted AT at her cousin’s house. In assessing the credibility of AT, the merefact that she did not avoid PK after the alleged assault is not a proper basis to found an assessment of credibility: R v FJC, para 44; ARD,para 42. • AT did not cry out or resist PK when he allegedly sexually assaulted her at the cousin’s house.

AT’s failure to cry out or resist thealleged assault cannot, by itself, found an assessment of credibility: R v Pittiman, (2005), (ON CA), 199 OAC 113at para 4, 198 CCC (3d) 308 (OntCA), aff’d 2006 SCC 9; Chen, para 24. [21] While basing credibility assessments on generalizations that are myths and stereotypes is prohibited, I may use common sensein assessing the evidence.

What I must avoid is speculative common-sense assumptions that are not grounded in the evidence.“...Common sense and experience have not been ousted; only their use as carriers of stereotypical and generalized ideas that groundimproper reasoning. Actual events and behaviour matter, not generalizations”: R v PO, 2021 ABQB 318, at paras 190-191. [22] In

summary, in assessing credibility, I must have “an open mind, one that is free from bias, prejudice, or sympathy”: R vBarton, 2019 SCC 33, para 195. III. Elements of the Offences [23] AT is charged with one count of sexual assault, contrary to s 271 of the Criminal Code and one count of sexual interference,contrary to s 151 of the Criminal Code. [24] PK was 15- years- old at the time of the alleged sexual assaults. For this reason, the essential elements of both offences are the

same. The Crown must prove both the actus reus and the mens rea of the offences. There are two elements the Crown must provebeyond a reasonable doubt: (

a) That AT intentionally touched PK; and (

b) That the touching was for a sexual purpose. IV. Are AT and PK Credible Witnesses? [25] It is not possible to explain the different version of events AT and PK testified to based on memory failure, differentperceptions, or miscommunication. The only explanation for the different versions is that AT, or PK, or both, are not being fully truthfulabout what happened. [26] I have credibility concerns about the evidence of both AT and PK. At times, both gave evidence that is not credible. Some ofthe evidence that I find not credible relates directly to the alleged sexual assaults.

I will deal with this evidence when I analyze thealleged incidents of sexual assault. Some of the evidence does not relate directly to the alleged sexual assaults, but relates to otherperipheral or background factors. I will address this evidence now. Is PK’s Evidence Credible? [27] The Defence contends that PK had a motive to fabricate his evidence. The Defence urges me to consider this motive inevaluating his credibility. The motive relates to the pressure his mother exerted on him to lay charges.

The Defence argues this created amotive for PK to fabricate and exaggerate his evidence. [28] During a voir dire to determine the admissibility of PK’s statement to police, PK, his mother, and step-father testified. PK saidhe told his mother about the sexual activity because they were not getting along and he wanted to spite her. He thought that she would behurt by the fact that it happened and disappointed in herself for not sheltering him.

PK disclosed the relationship with AT during a timeof intense disagreement between PK and his mother. [29] In my oral decision admitting PK’s statement, I did not accept the Defence’s argument that PK’s mother was exerting animplied pressure to lay and substantiate the charges, such that it would be difficult for PK to stand up to his mother’s strong views. TheDefence asks that I reconsider my decision on this issue. [30] A motive to fabricate is an important factor to consider in assessing a witnesses’ credibility: R v Batte (2000), at para 121, 49 OR (3d) 321, 145 CCC (3d) 449, 34 CR (5th) 197 (OntCA).

At the same time, the fact that a complainant has noapparent motive to fabricate does not necessarily mean that the complainant must be telling the truth: R v Bartholomew, 2019 ONCA377 at paras 21-28. [31] In this case, it is clear that PK struggled with whether to press charges. There are a number of possible reasons for this. Hesaid he wanted to do the right thing, but was not sure what the right thing was. He testified he felt obligated about the promises he hadmade to AT not to ruin her life. Both he and his mother testified that his mother did not express her strong views about pressing chargesto him.

I did not accept this evidence. I found as a reasonable inference that before making his statement to the police, his mother didexpress her strong views that he should proceed with charges. [32] I have reconsidered my decision. But, my view is the same. While I am satisfied that PK’s mother did express her strongviews that he should press charges, I am not satisfied that she influenced the content of his statement to the police, pressuring him tofabricate details. I am satisfied from the evidence of PK and his mother that PK regularly argued with and stood up to his mother.

I amnot satisfied that PK’s mother’s pressure to proceed with charges was a motive for PK to fabricate. [33] Notwithstanding my conclusion that PK’s mother’s views were not a motive to fabricate, I do have concerns about thecredibility of PK’s evidence. I find that PK was not being truthful in his evidence about how the relationship ended. [34] PK told police that he ended the relationship in the fall of 2016 because AT said that she loved him and he felt it was wrong inthe end. She told him she loved him over text many times and in person.

That made him feel weird and uncomfortable. [35] AT testified that she told PK at the Dairy Queen a few weeks after the alleged sexual assault at the cousin’s house that the twoof them should not hang out any further. She did not see him again. [36] While PK testified that he does not recall any conversion at the Dairy Queen where AT told him they should not hang outfurther, he gave no evidence about when or how he ended the relationship. He also acknowledged that he had a crush on AT and hadsexual fantasies about her.

His evidence that he ended the relationship is not believable in the face of his acknowledged crush on AT, andhis acknowledged sexual fantasies. [37] I also find PK’s evidence regarding the specifics of the sexual activity is contradictory in some ways and implausible in otherways. His specific memory regarding certain details, and his confusion regarding other details, is troubling. I will provide examples ofthese concerns when I address the allegations of sexual assault. Is AT’s Evidence Credible? [38] I find that AT was not being truthful in her evidence in describing the nature of her relationship with PK.

[39] In examination in chief, when asked how she would describe their relationship, she said PK was a troubled youth and neededguidance. She provided guidance from a place of care and mentorship. [40] While it is possible that this is how the relationship started, by the summer of 2016, I do not accept that this is an accuratecharacterization of their relationship.

The following evidence satisfies me that the relationship was personal and that she had feelings forhim: • The undisputed evidence is that PK would often text or call asking for a ride and she would pick him up. • They had many discussions in her car about PK’s personal issues. She also shared personal details such as the name of her fiancé,and her excitement about the house they were building.

She shared with him lyrics she had written as a girl. • PK’s evidence, which AT did not dispute, is that they met during the summer for lunch and they also went to a movie. • AT testified that she never expressed love for PK. However, he did express that he wanted a relationship with her. When askedhow she reacted to that discussion, she said that she tried to stay calm and not scare him or make him angry. She did say that this is notappropriate and that it could not happen.

She listed reasons such as: she was his teacher; the age difference; the difference in their familyvalues; that she was engaged; and that her family would not accept him. She gave him “all those reasons even if I did reciprocate which Idid not”. PK, although denying most of those reasons, did admit that she told him her family would not accept him. This is a bizarreconversation for a teacher to have with a former student where she is providing only care and mentorship. Conclusion [41] The above are examples of where I find that both AT and PK were not honest in giving their evidence.

There are otherexamples I will discuss relating specifically to the alleged incidents of sexual assault. [42] The significance of these examples is that I am not able to say that I accept in full the evidence of either AT or PK. I am notable to say that where their evidence conflicts, I accept one version over the other. I can accept all, some, or none of the evidence of ATand PK: R v JHS 2008 SCC 30 , [2008] 2 SCR 152, at para 10.

In determining what evidence to accept, I will consider thefollowing: • Whether the evidence is consistent with the undisputed facts; • Whether the evidence is consistent with common sense; and • Any inconsistencies in each of their evidence. [43] As the undisputed facts are important in assessing the credibility of the disputed evidence, I will next set out the undisputedfacts. V. Undisputed Facts [44] Based on the Agreed Statement of Facts, the undisputed evidence of AT and PK, and the photographs of AT entered asexhibits, I find the following facts: • PK was 15- years- old at the time of the alleged assaults.

At that time, he was about 6 feet and weighed about 250 pounds. • AT was 26- years -old at the time of the alleged assaults. At that time, she was about 5 feet 8 inches and weighed about 130pounds. • AT was PK’s music teacher at a junior high school during the school year 2015 – 2016. PK was in grade 9. • AT graduated with an Education degree in 2012 and started teaching that year. • After the school year ended in June 2016, AT and PK continued to see each other. They communicated by Snapchat and phone.PK was dealing with personal issues at home and insecurity issues. AT gave PK rides in her car.

During these rides they discussed hispersonal issues. • PK is Indigenous. He told AT that he experienced racism. In particular, he felt he did not get into his preferred school because hewas Indigenous. • AT told PK that she was engaged and that she and her fiancé were building a house together. AT took PK in her car to see herhouse. AT and PK also drove out to the Enoch Reserve. • At some point, after the school year ended, AT and PK had a discussion where AT told PK that her family would never accepthim. • AT has scars from heart surgery when she was an infant.

She has one vertical scar beginning at her collarbone down the middle ofher chest, one horizontal scar about 2 – 3 inches long below her rib cage and one smaller scar on her left side above the horizontal scar. • During the summer, AT tagged along some times with other students for ice cream and a jazz concert. She also gave otherstudents rides in her car.

• AT and PK had sexual intercourse at AT’s cousin’s house in 2016. Afterwards they drove to a drug store to buy Plan B. • AT performed oral sex on PK in AT’s car in 2016. • AT drove a 4 door Kia Forte. She lived with her parents. • Sometime in the fall of 2016, AT stopped giving PK rides. • In December 2016, PK’s father passed away. AT expressed condolences. VI. Did AT Intentionally Touch PK for a Sexual Purpose at her Cousin’s House? [ 45 ] Both AT and PK agree that the two engaged in vaginal intercourse at her cousin’s house. PK’s evidence is that they were both willing participants.

AT’s evidence is that PK sexually assaulted her. [ 46 ] I will first summarize the evidence of PK and AT on what happened at the cousin’s house and set out the positions of the Defence and Crown. I will then analyze the evidence to determine whether AT intentionally touched PK for a sexual purpose. Evidence of PK [ 47 ] PK testified that he and AT agreed to engage in sexual intercourse for the first time at AT’s cousin’s house. They went there for the purpose of engaging in sexual intercourse. It was planned. AT picked him up from school. They discussed protection before they got to the cousin’s house.

He asked her if they could not use protection because this was his first time. She agreed. [ 48 ] When they got to the cousin’s house, they parked about a block away and waited before going in. They were waiting outside for an aunt, uncle, or grandmother to leave. Someone left the house. AT and her cousin talked on the phone. AT and PK then went in. [ 49 ] Her cousin and her sister knew they were there to have sex. The cousin and sister told AT not to. [ 50 ] He said hello to AT’s sister and cousin. He then went downstairs to the basement. PK and AT both sat on the couch.

There was no discussion of his personal issues. The only discussion was her asking him “are you sure you want to do this?” She started touching him first. It was basic kissing. She then reached into his pants to touched his genitals. She was wearing pants. Their pants were removed and they each performed oral sex on the other. They then engaged in vaginal intercourse. [ 51 ] When they left the cousin’s house, he did not see anyone on the way out. After, they went to the drug store together. There was little discussion between the two on the way to the drug store.

She purchased Plan B and chocolate milk telling him that it goes down well with chocolate milk. AT then drove PK to the mall. Evidence of AT [ 52 ] AT’s evidence is that in September or October 2016, PK called her after school to pick him up because he wanted to talk about some things. He said he wanted to talk in a private space because he didn’t want to run into any of his high school class mates. She picked him up. She first contemplated going to her parents’ house, but the only private space there were bedrooms. That would send the wrong message. She called her cousin, as she lived just a few minutes away.

Her cousin was home with AT’s sister. She did not call to find out if the coast was clear, she called to see if her cousin was home and if she could bring a former student to the house so they could chat in a place he felt safe. Her intent in going to the house was to help PK with some personal issues, as he seemed very troubled. [ 53 ] There was no discussion about sex before hand. She was wearing a dress, not pants. When they went into the house, her sister and cousin were there. She said to them this is PK, we are just going to have a little chat.

She did not tell her sister and cousin they were going to have sex. [ 54 ] There were bedrooms in the basement. They did not go into the bedrooms. They sat down side by side on the couch in the open area of the basement. PK talked about his personal issues at home, struggling with his future and his insecurities. He was really down. She gave him a hug to comfort him. When she did that, he leaned back and pulled her on top of him, moved the skirt of her dress up and her underwear out of the way. He took his penis out and forced it into her vagina. It happened really fast. Some details are not clear.

She remembers getting off the couch and saying this should not have happened. She does not remember if he said anything in response. When it was happening, she did not say no or stop or try to physically resist him. She did not react because she was in shock. She was frozen. She did not put her hands down his pants, she did not intentionally touch PK in a sexual manner. She did not perform oral sex on him. He did not perform oral sex on her.

At no time did they discuss birth control or contraception. [ 55 ] After this happened, they went upstairs, left the house and drove to the drug store to get Plan B to prevent pregnancy. There was little discussion between the two on the way to the drug store. After she got Plan B, she dropped him off at the mall. Crown Position [ 56 ] The Crown contends that it does not need to rely on myths or stereotypes to impugn AT’s evidence. AT’s behaviour both before and after the alleged assault is bizarre and inexplicable. This is based not on myths and stereotypes, but on the logic of her own testimony

[ 57 ] In this case, there is a teacher who by her own admission is in a position of power over PK. She has the superior power, authority, intelligence, resources, support and maturity. She was in control. In contrast, PK was a vulnerable 15-year-old with none of these advantages. There is a significant power differential in favour of AT. [ 58 ] The Crown argues that AT’s startling lack of professionalism is good evidence of her extremely poor judgment. It calls all aspects of her credibility into question.

No teacher acting in their right mind would take a 15-year-old student to the privacy of her cousin’s basement to have a chat about that student’s issues. This is abhorrently unprofessional and outrageous behaviour. Nor would a teacher talk to a student over Snapchat. All of this behaviour is inconsistent with what common sense tells us about what any rational teacher would do, but that behaviour is entirely consistent with a teacher who is trying to hide a sexual relationship with a student. [ 59 ] AT’s evidence that she couldn’t move at the cousin’s house does not make sense.

Her own evidence is that she was on top of PK. How could she be on top and be unable to move? While she testified to being shocked, frozen and unemotional at the cousin’s house, she had the presence of mind to go the pharmacy to pick up a morning after pill. The Crown submits that by her own evidence, she was thinking right, demonstrated by the fact that she drove the two to the drugstore immediately after to pick up Plan B. [ 60 ] In contrast to AT’s evidence, PK’s evidence was careful and thoughtful. It lacked animus. He was detailed, consistent and not impeached in any meaningful way.

There were some minor inconsistencies in his statement, for example, the scars. However, PK’s confusion about the scars is understandable and what would be expected of a child who had sex with someone and is asked to recount sometime later the exact position of the scar. What is more relevant is the fact that he recognizes these peculiar scars, which he would have no reason to know about, but for his evidence of the sexual activity. Defence Position [ 61 ] The Defence argues that PK’s evidence is not credible.

There are a number of problems: • PK’s evidence that they parked on the street before going into the house to make sure the “coast was clear” and that the cousins and sister knew that the two intended to engage in sex is not believable. AT testified that her family were religious Catholics, a faith that frowns on extramarital sex. To suggest that they would facilitate this conspiracy to engage in sex is outrageous. • In his interview with police, PK told police that AT had told her cousin and sister in his presence that they were at the house to have sex.

He then admitted in his statement that he was not there when AT told them, as he had already gone down to the basement. • None of the advanced plans or arrangements one would expect of people planning to engage in sex were made in this case. If PK and AT planned in advance to have sex, then why did no one bring condoms? Why did they not use one of the several bedrooms in the basement? • PK’s and AT’s relative sizes mean it was possible for the sexual activity to have occurred as AT recounted. • PK’s evidence about how the sexual activity unfolded is inconsistent within his statement to police.

In PK’s statement, he initially told the police that AT had performed oral sex on him and then they had intercourse. Later in the statement, he told the police that AT had performed oral sex on him and then he reciprocated. • PK gave inconsistent evidence about whether AT was wearing pants or a dress and, if she was wearing pants, who pulled the pants down. In cross-examination, PK admitted that he had told three different versions. The first is that she had pulled down her own pants. At a later point in the statement, he said he had pulled down her pants.

Later in the statement he said when the intercourse was over, she had put her underwear back on, put on her stockings and they left. He admitted during cross-examination that she may have been wearing a dress, he was unclear about that. • PK’s evidence regarding AT’s scars is inconsistent between what he said to police and what he testified to in court. He told police he had noticed three scars. The first was a vertical scar on her chest that she told him came from heart surgery as a baby. The second was a skin tag on the inside of her thigh.

He acknowledged in his testimony that the mark on her thigh depicted in the pictures is different than the mark he described to the police. The third was a linear abdominal scar that was 2 or 3 centimetres long on the left side of her torso that she had told him was from an appendectomy. He marked this scar on the photos. The scar he marked is not the scar he described to the police. While there is a long linear scar 2 – 3 centimetres, it is in the centre of her torso.

What he marked does not match what he told police. [ 62 ] In contrast to PK’s evidence, the Defence argues that AT’s evidence was consistent, believable, and rang true. AT presented as a fairly stoic introverted person on the stand. However, when she described the episode of her being sexually assaulted by PK, she choked up a bit. [ 63 ] The Defence points out that AT had discussed her scars with her students, including PK, if they expressed insecurity or concerns about body image. She would demonstrate over her clothes, moving her hands over her chest and abdomen, where her scars were.

The subject of her scars came up with PK when he was talking about his insecurity about growing too fast compared to his peers, about stretch marks he got from the growth spurt and other scars or birth marks he might have had. She told him about her scars. [ 64 ] The Defence asserts that the issue for me to determine is whether AT consented to sexual intercourse.

Defence relies on the meaning of consent as set out in the seminal case of Barton where the Supreme Court defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question and provides that consent must be linked to the specific sexual activity in question. The Defence argues that even if I accept that there was previous sexual activity, AT’s consent was required for the sexual

activity at the cousin’s house. What she did or decided to do previously is not relevant. Further, Barton is clear that consent is a subjective factor existing in the mind of the complainant. If she did not in her mind consent, there was no consent. If PK was the accused on trial for sexual assault, he might argue honest but mistaken belief in consent. As he is not on trial, that is not relevant. The issue is whether she consented. [ 65 ] AT acknowledged that she did not vocalize her non-consent or physically resist. She did not report the assault on her to the police and she continued to see PK.

The Defence argues these are well known myths and stereotypes of how victims of sexual abuse are expected to act. It would be an error to use this evidence to make any adverse inferences about AT’s credibility. In this case, there is direct evidence from AT as to why she did not report the matter or disassociate from PK. She feared that if she went to police she would not be believed because she was the adult in the situation. [ 66 ] In

summary, the Defence argues that AT is a credible and reliable witness. She testified clearly without any significant internal inconsistency. Her demeanour changed when she talked about the intercourse at the cousin’s house. She was not evasive or defensive at any point. She admitted to matters that reflect poorly on her. She was unshaken in cross-examination. Analysis [ 67 ] I disagree with Defence: • That there is a clear inconsistency in PK’s statement to the police about what AT told her sister and cousin.

I find the transcript is unclear about whether he heard what AT told her cousin and sister, or whether he was describing what AT told him. • That a reasonable inference should be made that PK is not credible from the fact that AT’s cousin and sister are religious and, therefore, would not participate in what Defence calls a “conspiracy to engage in sex”. Other than AT’s evidence that her sister and cousin are religious, I heard no evidence from or about these two people.

Religious people do inappropriate things. [ 68 ] I disagree with the Crown: • That the fact that AT had the presence of mind to go to the store and purchase Plan B demonstrates that AT was not frozen or in shock, unable to react at the cousin’s house. AT did not testify that she was frozen for a significant amount of time. • That AT’s lack of judgment calls into question her credibility. It is possible to be both honest and lack judgment. • That a reasonable inference is that AT and PK used Snapchat to communicate in order to hide the relationship.

No evidence was led about whether Snapchat was the usual mode of communication for students at that time. Without evidence about why people use Snapchat, I decline to draw this inference. • That PK could only have only known about AT’s scars from engaging in sexual activity.

She had discussed them with her students. [ 69 ] I conclude that AT’s evidence that AT and PK went to the cousin’s house to discuss his personal issues is not credible because: (1) it is inconsistent with common sense; and (2) it is inconsistent with her evidence regarding the phone calls to her cousin. [ 70 ] I agree with Crown that AT’s evidence defies common sense. The intent, according to AT, was to chat with him to help him with some personal issues he seemed troubled with.

While AT considered and rejected going to her parent’s place, because it would send the wrong message, there was no explanation given for why they could not have the private discussion in her car away from the school where his class mates were. On several previous occasions they had discussed his personal issues in her car. Why was this not possible on this occasion? If AT thought about sending the wrong message, then why not go to a park or coffee shop?

There is no explanation that makes any sense as to why, on this occasion, they would go to the cousin’s basement to talk when on previous occasions they had private discussions in her car. [ 71 ] AT gave inconsistent evidence regarding the phone calls to her cousin. She contradicted herself during examination in chief on why they parked in front of the house. She testified that she called her cousin to make sure she was home. Her cousin and her sister were home. They lived only a few blocks away. She asked if she could bring a former student with her so they could chat in a place he felt safe: “And we got there”.

She is then interrupted by counsel who asks another question. She then returns to the narrative and testifies that when they got to her cousin’s house, she stopped the car in front of the house and called her cousin to make sure she was home. I conclude from this that there were two calls. Once, before she got to the house to see if her cousin was home and once when they arrived and parked. The second call could not be to see if the cousin was home. She knew that already. AT’s cousin and aunt lived at the house.

The fact that AT’s aunt lived at the house together with the second call supports PK’s evidence that they were waiting for someone, possibly an aunt, uncle, or grandmother to leave before going in. [ 72 ] I disagree with the Crown that PK’s evidence was detailed, consistent, and not impeached in any meaningful way. I find that PK’s evidence of what sexual activity took place in the basement and how it unfolded is not credible because of his selective memory on the details of the visit. It is concerning that PK had a very good memory of certain details, but not other details.

He recalled where the cousin lived and was able to locate it, even though he was there only once. He recalled parking at the house to wait for an uncle, aunt or grandmother to leave. He recalled AT and her cousin talking on the phone before they went in. He recalled going to the store after to purchase Plan B and AT telling him the pill goes down well with chocolate milk. Yet, he had a very poor memory of who took off AT’s clothes, what AT was wearing, and how the sexual activity unfolded. This was a significant event for PK. It was the first time he engaged in sexual intercourse.

He wanted to engage in the sexual activity, even if he could not legally consent. One would expect this experience to have been memorable. It is very troubling that he recalls many details preceding the incident – which I find compelling, and after the incident, which were confirmed by AT, yet his memory about what happened in the basement is confused and inconsistent. [ 73 ] Notwithstanding my concerns about PK’s memory of the sexual activity in the basement, I find that the purpose in going to

AT’s cousin’s house was not to discuss PK’s personal issues. While I do not accept that AT and PK had discussed and agreed in advance to engage in vaginal intercourse, I find that the purpose in going to AT’s cousin’s house was to engage in some form of sexual activity. This explains why they went to the cousin’s basement, as opposed to talking in the car or some other public place. It also explains why AT called the cousin before arriving at the house to see if she was home, and when they got to the house to see if it was safe to come in. I find they went down to the basement and sat side by side on the couch.

At some point, AT and PK had vaginal intercourse. [ 74 ] I am satisfied beyond a reasonable doubt that AT and PK went to the cousin’s house to engage in some form of illicit activity. I am not able to make any findings regarding how the vaginal intercourse happened and whether AT and PK also engaged in oral sex. Given the credibility issues of both AT and PK, I do not know which one of the conflicting versions is true. But my role is not to determine which of those versions is true. My role is to determine whether or not the Crown has met its burden of establishing the offences beyond a reasonable doubt.

The evidence about what happened once AT and PK went into the basement raises a reasonable doubt about whether AT intentionally touched PK for a sexual purpose. I am not satisfied that the Crown has met its burden of proving the essential elements for this incident. VII. Did AT Intentionally Touch PK for a Sexual Purpose following the Cousin’s House? [ 75 ] AT admitted that she performed oral sex on PK in her car about 1 week after the sexual activity at her cousin’s house. Her evidence is that she did not engage in this act willingly.

She felt forced. [ 76 ] I will summarize the evidence of AT and PK on what happened in the car after the cousin’s home. I will set out the positions of Defence and Crown. I will then analyze the evidence to determine whether AT intentionally touched PK for a sexual purpose. Evidence of PK [ 77 ] PK testified that there was an episode of oral sex after the cousin’s house. He called AT and asked for a ride to the mall. She picked him up. He denies asking her to perform oral sex on him. He denies that at first, she said no.

He denies forcing her to perform oral sex on him. [ 78 ] He denies that he said “well we’ve already done the other thing”. He did admit that at some point he may have said something to the effect of: “I know I can ruin your life, but I won’t”. He was not clear when he might have said this. [ 79 ] PK also denied there was a second occasion when he asked AT to perform oral sex on him and she refused. He did not recall any conversation at Dairy Queen where AT told him they should not hang out any further.

Evidence of AT [ 80 ] AT’s evidence in chief is that this happened in October, about one week after the incident at her cousin’s house. PK called or texted her to pick him up. She did. She parked and asked him how he was doing. He said he was thinking of her and really wanted her, as he was fondling his crotch area. She said that is not appropriate. He pulled out his penis and asked her to give him oral sex. The car was running and she was wearing her seatbelt. She said no. He then said” well we already did the other thing so”. It was implied that he would tell on her if she did not perform oral sex.

She was afraid of not being believed about the incident at the cousin’s house. He insisted and took the back of her head and pushed her towards his penis and would not let her break away. She tried to break away from him. She finally succeeded and it stopped. However, before she succeeded in breaking away, she did get her mouth around his penis. She does not remember what was said between them after she disengaged, but she would have said this is inappropriate. Afterward, she drove him to where he needed to go.

Despite PK’s acknowledgment during cross-examination that he may has said at some point “I know I can ruin your life but I won’t”, she did not give this evidence. [ 81 ] In cross-examination, she admitted that although she did not want to perform oral sex on him, she went along with it. He did not hit her. He did not physically attack her. She went along with it because she was afraid he would report her. [ 82 ] After this incident, she did not disassociate from him because she was afraid that if she did anything that made him angry, he would threaten and ultimately go to the police.

Shortly after this incident, she again picked PK up from school and drove him to the mall. They stopped around some houses and apartments. He said he wanted to talk about something. He asked again for oral sex. She said no. This time she was adamant in saying no. He did not force her to perform oral sex. She believes he said o.k. PK then told her about how he has visualizations, dreams or fantasies about her, including fantasies about having intercourse with her in the band instrument room.

She told him that is inappropriate and that he should not expect that or say that to her. [ 83 ] Shortly after this, she asked him to meet her at the Dairy Queen across from the high school. She told him that he was welcome to still participate in volunteer activities at his old junior high school, but that they should not be hanging out anymore socially because she was done feeling pressured to do things she did not want to do. She feared that there was a possibility, probability, that he would go to police. She decided she would rather face that than continue to be pressured.

She did not trust him to not continue to force her to do things she did not want to do. He agreed. It was brief. He did not express any anger or resentment. He just said o.k. This was the last in person interaction they had. In December 2016, he lost a family member and she expressed condolences to him on Snapchat. Position of the Crown [ 84 ] The Crown agrees that AT admitted in her evidence the essential elements of the offence of sexual assault and sexual interference: that she intentionally touched PK for a sexual purpose. The Crown agrees with the Defence that there is no defence of

duress on the facts of this case. Consent is not the issue. [ 85 ] Notwithstanding AT admitted to the essential elements of the offences, the Crown does not seek a conviction based on AT’s admissions for public policy reasons. The Crown did not elaborate on what those public policy reasons are. The Crown argues that AT should be convicted because her evidence does not make sense. Her evidence is contrived. While I should not generalize about why AT did not report this incident and why she continued to see PK, I can look at the reasons she provides for doing those things and ask if they make any sense.

The Crown asserts there is no rational foundation for AT’s belief that PK would blackmail her. AT confirmed in her evidence that PK never used any physical violence with her. Nowhere in her testimony is there evidence that PK through his words or actions threatened her in any way . Position of Defence [ 86 ] PK was not able to distinguish this incident from other episodes of oral sex. While AT acknowledged that it occurred, her evidence is that it was not voluntary on her part. She said no initially. She felt threatened by his reference to the previous intercourse incident.

She felt she could not go to the police because she was the adult. She felt blackmailed into accommodating him or he would disclose the intercourse and it would be used against her. Defence argues this case is exactly the situation the accused faced in Chen where the accused felt she could not go to the police. [ 87 ] In Chen the accused was a 29-year-old female, living in a transition house. She was charged with sexual assault of a 13-year- old boy, who was the son of another woman living at the same house. She admitted to having a friendly relationship with the complainant’s mother and the complainant.

A staff member at the home testified that she felt the accused’s interactions with the complainant had been inappropriately close, they were spending too much time together in the kitchen and she was letting him use her computer in her bedroom. The complainant testified to two incidents of sexual intercourse in her bedroom. The accused admitted to one of them and the jury convicted her of that count, but acquitted her with respect to the second alleged intercourse incident, which the accused denied. [ 88 ] The accused’s evidence was that one evening she went off to her room to put her two-year-old son to bed.

The complainant was using her computer and asked if he could come to her room to continue to use her computer. She agreed. The accused laid down on her bed and fell asleep. When she awoke, she found the complainant on top of her. She said that when it was happening she wanted to scream but could not. When she tried to say no, she felt paralyzed and nothing came out. She testified that after the incident the complainant told her not to tell anybody or she would to go jail. When she responded to him that he had raped her, he told her that it did not matter because he was the minor.

She did not tell the complainant’s mother and did not report it to the police because she was frightened given that the complainant was a minor. She did not try to avoid the complainant after the incident because she wanted to keep him happy and “not piss him off”. [ 89 ] The B.C. Court of Appeal found the trial judge erred in her jury charge telling the jury that they could consider the fact that she did not cry out during incident and did not try to avoid him.

The Court also noted that in this situation where both the complainant and the accused claim they were assaulted by the other, the Court must assess credibility from both the perspective of the accused and the perspective of the complainant. Further, the Court must be careful in shifting the burden of proof to the accused by imposing an obligation on the accused by suggesting a need to support her account with independent evidence. [ 90 ] The Defence acknowledges that the legal defence of duress does not apply, but argues that the issue is a question of consent.

Counsel submits that in this situation there was no genuine consent. Consent exists subjectively in the mind of the complainant. Analysis [ 91 ] I disagree with the Defence that the issue for me to decide is whether AT in her own mind consented to performing oral sex. In this case, AT is the accused. The issue is whether she intentionally touched PK for a sexual purpose. [ 92 ] I also disagree with Defence that this case is exactly like the situation in Chen . In Chen , the accused testified that the complainant told her not to tell or she would go to jail. In this case, PK did not make any express threat.

Another significant difference between the two cases is that after the first incident in Chen , the complainant did not engage in sex with the complainant a second time. [ 93 ] I agree with the Crown that AT’s evidence on this allegation of sexual assault is contrived. I find her evidence is not believable because: (1) her evidence in chief is inconsistent with her evidence in cross examination; and (2) there is no rational basis for her belief that PK would probably go to the police. [ 94 ] During examination in chief, AT testified that she was physically forced by PK to perform oral sex.

Her evidence did not make sense. While she described PK forcing her head down towards her penis and her struggling to break free, somehow her mouth went around his penis. During cross examination, she resiled from this evidence and admitted that she went along with it. [ 95 ] While AT testified that she agreed to perform oral sex because she feared that PK would probably go to the police, she did not explain why she thought this. Her only evidence was that she took his statement that “we’ve already done the other thing” as an implied threat that he would tell on her.

There was no express threat by PK to tell anyone. On her evidence, PK had sexually assaulted her. If that is so, then why would PK risk going to the police when he could be charged with assault? I agree with the Crown and find that there is no rational basis for AT’s belief that PK might go to the police. I find that AT voluntarily performed oral sex on PK in her car. I am satisfied beyond a reasonable doubt that AT intentionally touched PK for a sexual purpose.

Further, the fact that on the subsequent occasion when AT adamantly refused PK’s request for oral sex and his acquiescence to that refusal supports the conclusion that PK had not forced AT to perform the oral sex and that instead it had been intentional. [ 96 ] If I am wrong in this conclusion, regardless of whether AT voluntarily performed oral sex on PK, or whether she did so because she was afraid PK would go to the police, she admitted in evidence to the requisite elements of the offences. She admitted that

she intentionally touched PK for a sexual purpose. [ 97 ] In my view, absent the necessary facts to establish the defence of duress, it is against public policy for anyone to commit a crime because they fear another person might make a false allegation against them and they might not be believed. In my opinion, this is where this case stands far apart from Chen . [ 98 ] In conclusion, I am satisfied beyond a reasonable doubt that AT intentionally touched PK for a sexual purpose when she performed oral sex on him in the car after the cousin’s place. VIII.

Did AT Intentionally Touch PK for a Sexual Purpose on Other Occasions [ 99 ] PK alleged other occasions of AT performing oral sex on PK in her car and two other incidents of sexual intercourse: one in AT’s car at the Enoch Reserve and once in the instrument room at the school. AT denied that any further sexual activity occurred. [ 100 ] I will first summarize the evidence on the other alleged incidents. I will then set out the position of Defence and Crown. I will conclude with my analysis.

Evidence of PK [ 101 ] PK testified that during the summer and early fall of 2016 AT performed oral sex on him in her car on several occasions, before and after the they engaged in sexual intercourse at the cousin’s house. He could not recall the number of times. The oral sex occurred in various places around Edmonton. AT would pick him up and park in alleys or residential places in the west end of Edmonton. Sometimes she would climb over the console and place herself on the floor in front of him, under the passenger glove compartment, and perform oral sex on him.

Sometimes she would lean over the driver’s seat and perform oral sex. [ 102 ] After the cousin’s house incident, they also had sexual intercourse in the band instrument room at the school and in her car at the Enoch Reserve. Both times the intercourse was spontaneous. He could not recall which occasion was second and which one was the third. [ 103 ] PK testified that AT wanted to go to the instrument room to have sexual intercourse. He is pretty sure the janitor was there. As the school is closed during the summer, AT used her key and key code to access the school. The band room is in the basement.

The instrument room is a small room, off the band room, where the instruments are stored. AT was completely naked. They started sexual intercourse on the floor. The floor is linoleum and was cold and uncomfortable. He moved to a chair and she sat on top of him and put his penis inside of her and sat herself on one of the slots. He held one of her legs, against the wall and basically thrust in and out. This time, AT put a condom on him and eventually took it off because it was too small. He did not ejaculate inside of her as she wanted to be safe.

After, she went to the store to get Plan B. [ 104 ] They also had intercourse in her car at the Enoch Reserve. This happened during the summer. They went for a drive in her car to the reserve in Enoch because AT thought the city was too public to have sex. AT planned with him to go to Enoch so they could have sex in her car. He was in the passenger seat. She was in the driver seat. It was during the day. She climbed over into the passenger seat and sat on his penis. He thinks she was fully naked. It was one of the two times she was fully naked.

Evidence of AT [ 105 ] AT denied any incidents of sexual activity, other than the sexual intercourse at her cousin’s house and the one incident of oral sex in her car about one week after the cousin’s house. [ 106 ] AT introduced into evidence pictures of her car, a Kia Forte.

She testified that it would be extremely difficult, if not impossible, for her to have performed oral sex on PK in the manner he described by going over the console and placing herself under the glove compartment. [ 107 ] AT also introduced pictures of the instrument room to illustrate how uncomfortable it would be to engage in sexual intercourse in this room and to show the windows in the room look out at the playground and the basketball court.

She testified that the window in the instrument room was not blocked in the summer of 2016. [ 108 ] In the summer of 2016, AT took PK for a drive to see the new house she was building with her fiancé. PK wanted to show her where he lived. That is why they went to the Enoch Reserve. They drove around but did not stop. [ 109 ] After the cousin’s house incident, PK told her that he has visualizations, dreams, or fantasies about her. He told her that when he was her student, sometimes in class, he would zone out and imagine her and him having intercourse around the band and instrument room.

Crown Position [ 110 ] The Crown argues that PK’s evidence is generally consistent and believable for the following reasons: • The Crown disagrees with the Defence argument that it is not possible for the two to have sex in her car. Big people have sex in cars. AT’s four-door sedan wasn’t particularly small. She testified it’s possible to move the seats back. People also have sex in cars in

places that are somewhat public. • One explanation for why the two were having sex in the car is because they had no better place to go. AT could not take a 15- year- old student to a motel, or her parent’s house to have sex. • The Crown disagrees that PK’s demeanor changed and that he was being evasive when questioned about the photos. The Crown objected to the line of questioning about the photos because it had been going on for about 40 minutes and nothing relevant was happening.

The Crown argues PK was frustrated, not evasive. • As mentioned before, PK’s confusion about the scars is understandable and what would be expected of a child who had sex with someone and is asked to recount it sometime later the exact position of the scar. What is more relevant is the fact that he recognizes these peculiar scars, which he would have no reason to know about, but for his evidence of the sex. Defence Position [ 111 ] The Defence contends that these other incidents that PK testified about did not happen. They are PK’s fantasies.

PK’s testimony is problematic and not believable for the following reasons: • The oral sex in the car where AT climbs across the console and under the glove compartment in front of AT is not possible given the size of AT and PK. • The incidents PK alleges, all happened in public places, presenting a very high risk that they would be caught. It is not reasonable to infer that on numerous occasions, AT was willing to take that risk. • There was a noticeable difference in the manner of PK’s evidence on the alleged sexual activity in the car.

During direct examination he responded to questions and answered direct questions without difficulty. In contrast, when the Defence cross examined him on the photographs of the vehicle he became difficult, refusing to readily admit that the vehicle in the pictures was her vehicle. He was difficult and evasive in acknowledging that these incidents happened in a public place where people could come by and notice them. • As mentioned before, PK’s evidence regarding AT’s scars is inconsistent between what he said to police and what he testified to in court.

Analysis [ 112 ] I agree with the Defence that PK’s evidence on the other alleged incidents of sexual assault is problematic. Considering all the evidence, I have a reasonable doubt whether any of the other alleged sexual incidents happened for the following reasons: • While I agree with Crown that big people do have sex in cars, it makes no sense that AT would on some of the occasions climb over the console and position herself in front of PK under the glove compartment to perform oral sex. This would be difficult and uncomfortable. • The events PK describes did happen in very public places.

Taking a student to the school to engage in sex where the janitor may be and people might be outside playing on the basketball court and the playground is extremely risky. I agree with Crown that people do have sex in public places where passers-by might see. In most cases, the consequences of being caught in public is embarrassment. This situation is different. In this case, the consequences of being caught are that AT would lose her career and face criminal charges.

I am not prepared to infer that AT would take that risk. • Although PK denied that he fantasized about having sex with AT in the instrument room, he did admit that he told AT he had sexual fantasies about her. On this issue, I accept AT’s evidence that PK told her he had sexual fantasies and that one of the fantasies was to engage in sexual activity in the instrument room.

It rings true. • While PK knew that access to the school after hours was by key card, it is possible he gained this knowledge from other teachers or students. • I agree with the Defence that when questioned on the pictures of AT’s car and whether the places where the alleged sex occurred are public, PK was evasive and refused to readily acknowledge what was clear. • I disagree with the Crown that the relevance of the scars is that he had no reason to know about these, but for his evidence of the incidents of sexual intercourse.

AT’s evidence is that she told him about her scars and showed him where they were with her hands over her clothes. She did this because he had raised issues about his scars. While PK was not certain, he agreed that he may have told AT that he had scars or stretch marks that bothered him.

AT provides a plausible explanation for why PK has some knowledge about AT’s scars and why he incorrectly described the scars in his statement to police and why his evidence at trial was different than his statement to police. [ 113 ] Regarding the allegation of sexual intercourse at the Enoch Reserve, I find both versions implausible. I do not know which version is true. PK’s evidence that AT was fully naked lacks plausibility because this would be unnecessary in order to have sex and unnecessarily risky.

AT’s explanation for why they drove to the reserve lacks plausibility as well because she testified they went there to see where he lives, but they never actually drove by his house. [ 114 ] It is clear that AT and PK had an improper personal relationship. It is possible, even likely that this was developing or developed into an improper sexual relationship. While it is possible that the allegations made by PK are correct, the law requires that I must be satisfied beyond a reasonable doubt. I am left with a reasonable doubt about whether any of the other alleged sexual acts happened.

Accordingly, I conclude that AT did not intentionally touch PK for a sexual purpose on any of the other occasions alleged by

PK. IX. Conclusion [ 115 ] I conclude that Crown has proven the essential elements of the offence of sexual assault and sexual interference beyond a reasonable doubt. AT touched PK for a sexual purpose in her car on one occasion by performing oral sex on PK. [ 116 ] I find AT guilty of the charges of sexual assault and sexual interference. Heard on the 12 th to 17 th day of April and 31 st Day of May, 2021. Dated at the City of Edmonton, Alberta this 15 th day of July, 2021. Susan L. Bercov J.C.Q.B.A.

Appearances: Damon MacLeod for the Crown Brian Vail for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Susan L. Bercov _______________________________________________________ Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify THE VICTIM OR AT must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

Restriction on Publication has been changed to restricting information that could identify the victim only. The ban no longer restricts information that could identify AT Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify THE VICTIM must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.