R v GH, 2021 ABQB 920

Court of Queen’s Bench of Alberta Citation: R v GH, 2021 ABQB 920 Date: 20211117 Docket: 190364877Q1 Registry: Edmonton Between: Her Majesty the Queen - and - GH Accused Restriction on Publication Order Restricting Publication – See the Criminal Code ,

section 486.4 . By Court Order, any information that could identify the Complainant, who is referred to in these Reasons as “AB”, must not be published in any document or broadcast or transmitted in any way.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. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] GH is charged with four offences: 1.

Sexual assault of AB between May 1 and November 30, 2017 contrary to CC s. 271, 2. Sexual touching of AB, a person under the age of 16, between the same dates, contrary to CC s. 151, 3. Invitation to sexual touching of himself by AB between the same dates, contrary to CC s. 152, and 4. Showing sexually explicit material to AB for the purpose of facilitating an offence under CC ss 151, or 152, or 271 between the

same dates, contrary to CC s. 171.1(1)(b) [ 2 ] AB’s mother, CD, and GH were romantically involved and lived together for a time. AB and her younger brother, EF, who is the son of GH and CD, lived with them. AB was born in June 2007. So, in these Reasons, AB is the Complainant, CD is the Complainant’s mother, EF is the Complainant’s younger brother, and GH is the Accused. I have used these initials because using actual names could identify AB or her younger brother.

None of these initials are the actual initials of the persons referred to. [ 3 ] AB was interviewed at the Zebra Centre on May 24, 2018 about a month before her 11 th birthday and about a year after the events she described. The video of that interview was shown in Court during AB’s testimony and she adopted it. The portions of the interview video in which AB described “the acts complained of” were admitted into evidence pursuant to CC s. 715.1. Mr. McIntyre acknowledged that the requirements of the

section were satisfied. [ 4 ] In the Zebra interview, after several minutes of the interviewer attempting to make AB comfortable talking to her, the interviewer asked AB why she had come to Zebra that day. AB answered, “to talk about what GH has done.” [ 5 ] AB then disclosed as follows: Q. Okay. So then you go ahead and you tell me about that. AB. Un he technically like, its not really, but like raped me in a way. Q. Okay. AB. But not like totally.

Um he mostly sexually assaulted, um or sexually like touched places that he shouldn’t of . . . [ 6 ] The interviewer’s questions then turned to AB’s understanding of the terms she had used in that initial exchange.

AB indicated that rape is “when somebody . . . usually forces you to connect in the bed.” Asked what she meant by “connect in bed”, AB said, “sex really.” Asked what “sex” meant to her, AB answered, “technically it really means like how to make a baby.” Then using age appropriate terms, the interviewer asked AB about her understanding of the mechanics of the sex act, and her answers indicated that she knew the details of those mechanics.

AB also indicated that sexual assault was “like sexually like touch places that they shouldn’t or . . . hurt places that they shouldn’t.” [ 7 ] After this discussion, the interviewer returned to AB’s disclosure of GH’s acts. AB said that when her mom was around, GH was very strict. But when CD was not around GH was very nice, “in a weird way”.

She said that when GH talked to her he “looks around this area” – she indicated the area of her vagina and her chest. [ 8 ] Asked for a specific instance, AB told the interviewer that GH had planned to take her to Calgary around the time of her 10 th birthday to get a cat but indicated that if she wanted a cat she would have to have sex with him. She said that he did not use those actual words, he made signs that indicated that she would have to engage in the sex act with him.

She said that this conversation between herself and GH occurred in the basement and that “to be honest I don’t really remember the exact words.” [ 9 ] She said that during this conversation, GH “started to kneel down, like started to touch my legs kind of, then yeah, I, my mom was upstairs putting my brother to bed, so I just kind of like swept his hand away, ’cause . . .

I felt uncomfortable, and I started to run upstairs and sit with my mom. . . . and then he just got mad . . . kind of.” She said that when CD intervened, he started to be “really rude with my mom.” [ 10 ] The interviewer returned to what had occurred “downstairs”. AB indicated that there was a TV and an L-shaped couch in the basement. She had been sitting on the L-shaped couch. The interviewer asked what GH did with his hands.

AB said, “Well he just kind of like, like not really massaged but just started to like work his way up to here. [She indicated her upper thigh area.] I felt really uncomfortable so . . we left it at that pretty much.” [ 11 ] The interviewer asked what GH’s hands were doing when he worked his way up. AB answered, “I don’t really remember that part, but I just know his hands were kind of just working . . ..” AB said that GH’s hands had started at her feet and worked up to her thigh.

Asked how far he went on her thigh, AB touched the upper front part of her legs as she said, “Like up to here . . .” [ 12 ] Asked if GH touched anywhere else on her body at that time, AB answered, “No.” [ 13 ] On this third telling of the details, AB indicated that when she had pushed GH out of the way and tried to run, he tried to grab her so she wouldn’t go upstairs to tell her mom. AB said that she told her mom the details the next day when they were driving home.

AB told her mom, that GH “wanted to have sex with me in a way.” AB said that CD did not believe her, “she didn’t really get why he would do that, so she didn’t believe me, but she started to warm up and see how he actually was.” [ 14 ] Then this exchange occurred in the interview: Q. . . . you used the word, he wanted to have sex, has he talked to you about those, that type of thing, about sex? [AB nodded] So tell me about that. AB He taught me how to French kiss Q. Okay AB Like he forced my mouth to his mouth Q. Okay

AB Um he like, his peanut [AB’s word for penis] he made me put his, my hand on it and started to rub it up and down. Q. Okay AB And he touched my area when I told him not to Q. Okay AB And yeah Q. Okay, . . . So . . . did those happen at different times or did that all happen at one time? AB All one time Q. Okay. So if you think about that one time, tell me from the very beginning and everything that happened that one time. AB Well we were going to go to the movies and he got to pick a movie and it was Baywatch. Q. Mmmhmm.

AB And um we got to, when he, the only way I was allowed to go in if he like touched me, and I thought he just like was going to like slap or whatever, then I realized when he touches he kind of just went straight to like down here [AB waved her hand over the area of her vagina] and he just took my hand and put it on his thing, and that’s pretty much when, after he taught me like, made me like French kiss. . . kind of with him. And then I just felt uncomfortable.

Then we went to the mo, inside the movies and he just started holding this part . . . kind of [AB touched her upper thigh and vaginal area], like what he does to my mom. Q. Mmmhmm AB. And I felt really uncomfortable, so I kind of just went to the washroom for like the other quarter half of the movie. Q. Mmmhmm AB. And then he came out and he’s like, what are you doing? And he started yelling at me, and we went straight home. Q. Okay AB and he started acting nice on the way home, and he started to act really mean once we got into the house. [ 15 ] The interviewer questioned AB about the details of this incident.

In this second telling of the story, AB said that when GH had “grabbed my area” she tried to open the car door, but he locked it. She stated that the “area” he grabbed was, “mostly my vagina.” He did so with his hand. Asked if his hand was over her clothes or on her skin, she answered “on my skin”. Asked what she was wearing, she answered, “shorts but like a little longer, like up to my knees,” and a plain tank top.

She said that GH unbuttoned her shorts and “kind of just sort of touching my actual skin.” Asked where he touched she answered, “He touched like, like right in there, like right where like, I don’t really know, but it’s just . . . like that little thing that hangs there.. . . Like he, he just started rubbing it and stuff like that and I felt really uncomfortable . . . but that’s pretty much all I remember.” [ 16 ] The interviewer recalled that in her first description of the events in the interview, AB had said that GH made her put her hand on his penis.

In this second telling, the interviewer asked her for details about that. She said, “He just grabbed my hand really tight so I wouldn’t be able to like move it and then he just like unbuttoned himself really quickly and he put my hand on his thing.” This exchange followed: Q. Okay. So then when your hand was there, what did he do? AB. He just started like putting my hand up and down on his thing. Q. Okay. Okay. And did anything else happen to his thing? Was there anything you can remember about it? AB Something came out of it. Q. Okay. AB I think it’s called cum or something. Q. Okay. Okay.

And how do you know that? AB Um he taught me it. Q. Okay. AB. He, I shouldn’t know everything, but he’s the one that taught me it. He made me watch like porn videos, um and stuff like that. He always like said watch this, and I thought it was going to be like something like an animal eating an animal, ’cause that’s what he usually does. Q. Mmmhmm. AB but then it was just like a porn video, and he was like teaching me all this stuff. He’s like one day you’ll need to know this. And I

was like, I was only 9 or 8 at that time. [ 17 ] The interviewer asked AB whether anything else happened in the car before the movie. AB said that after the sexual touching previously described, GH “. . . put my face as close as possible to his face, like, and he made me like put my tongue on this tongue.” [ 18 ] The interviewer asked AB for further detail as to what happened in the movie.

AB said that GH was “squeezing right here [indicating her vaginal area] and then he started to work his way up to like my hip kind of . . . by touching like the end of my vagina.” Asked if this was over or under her clothing AB said this touching was over her clothing. [ 19 ] The interviewer asked AB if anything, meaning any touching, happened while she and GH were watching the porn videos. AB said nothing had. [ 20 ] The interviewer asked AB whether GH explained things to her as they watched the porn videos. She said he explained what a penis was.

Until then she had not known that boys and girls had different body parts. She said that what they watched were “mostly like little clips, like 3-minute clips . . . five or six times.” He showed her these clips in the basement, in his car, in the kitchen, and on the couch using his phone. [ 21 ] AB told the interviewer that once she was looking “on my tablet that he gave me” and she saw some videos of CD and GH both naked. [ 22 ] The interviewer asked if there was ever another time when something happened.

AB answered, “Well when like he picks me up from school he just immediately like touches right here.” She indicated her vaginal area. [ 23 ] The interviewer advised AB that she, the interviewer, had forgotten to tell AB something at the start of the interview. AB volunteered, “There’s police”.

The interviewer said they would take a break while she talked to “her police partner”. [ 24 ] Much of the content of the interview which occurred after the break is not in evidence, either because counsel agreed that it was inadmissible, or because I ruled it not admissible under CC s. 715.1 because it dealt with matters other than “the acts complained of.” [ 25 ] Towards the end of the interview, the interviewer asked AB if there ever was a time when she saw GH’s penis. She answered, “Yeah . . .

Well it was either in the videos or that where I, he made me put my hand on it.” [ 26 ] AB then related another incident. She said, “And then like um, uh my desk, I was sitting there and he started like unbuttoning and then he was kinda like doing what he made me do with his hand in my room and I had to go to the washroom . . .” Asked when this happened AB said she wasn’t sure. She said it was in her room.

She said, “I only remember those parts because I went to the washroom and then I just came back and he was undressed and he just did that and I ran downstairs to my mom was like coming in from the garage.” [ 27 ] She said that when GH was in her bedroom he was under the covers on her bed. She described seeing him masturbate though she did not use that word. She also said that he was using a “silicone version of a peanut” in connection with that activity.

She recalled that this occurred on May 1 because it was the day before his birthday and CD had required her to stay with GH because she felt bad for him that he was alone on his birthday. [ 28 ] At the end of the interview, the interviewer asked AB if there was anything she was wondering about.

AB asked, “Would my mom ever get arrested because of not telling like anybody or would that really happened or would it mostly be [GH] getting arrested.” The interview suggested that she speak to the police officer who was nearby. [ 29 ] In her evidence in chief at trial, AB, now 14 years old, was asked about GH’s touching of her legs. She testified that this occurred almost every day. He touched her on her thigh in a sensual way.

She testified that there were times in addition to the times she mentioned in the Zebra interview when GH would take her to stores and buy things for her and having done so would say, “you should do something for me.” She said there were times when he would hold her neck close to his face or would hold her wrist and force her to touch his groin area, his penis and to rub his penis up and down.

She said he taught her to French kiss twice – once at the movie theatre as mentioned in the Zebra interview and she did not remember the other time. [ 30 ] She testified that the planned trip to Calgary with GH never occurred. [ 31 ] In cross examination, she testified that she had not known that her Zebra interview had been in connection with a police investigation.

She thought she was talking to social services, that she did not intend to bring the police into it. [ 32 ] In cross-examination, GH confirmed that after CD gave birth to EF, AB went to live with GH’s parents, and then with CD’s mother, her grandmother, and that in April 2016, about a year before the alleged sexual assault, she resumed living with CD and GH.

And it was a year after the alleged sexual assault that she went to talk to the police. [ 33 ] She acknowledged, again in cross-examination, that when her younger brother was born she had seen his private parts when his diaper was being changed, and saw that they were different than a girl’s private parts.

Later in cross-examination she testified that she had not recognized that there was a difference when she saw her infant brother’s private parts – that she did not understand that there was a difference until she was 8 years old. [ 34 ] In cross-examination, she testified that though it had been GH’s idea to go to a movie, she had chosen the movie, and that she knew her mother did not approve of her seeing that particular movie. [ 35 ] She testified that there was tint on the front windows of GH’s vehicle when they went to the movie.

She testified that the theatre parking lot was not busy – at least in the part of it where GH parked his vehicle.

[ 36 ] In cross-examination, she testified that after she and GH returned from the movie he was mean to her in the garage. She went to her room when they entered the house. Her mom left to buy cigarettes. GH came into the room. She was crying. GH laid on her bed. She stopped crying. She acknowledged that she had not previously mentioned this detail in her account of the events of the night she and GH went to the movie. [ 37 ] In cross-examination, she testified that GH took her to stores to buy her things and that she understood he did so because he wanted her to give him sexual favours in return.

She acknowledged that she had not mentioned this in the Zebra interview. [ 38 ] Occasionally in cross-examination when a detail of her statement in the Zebra interview was put to her she said that she could not now remember that detail. [ 39 ] Occasionally when asked a question in cross-examination she thought for several seconds before responding. She said that the answer to the question was hard to remember. [ 40 ] In cross-examination, she denied having talked often to CD about the events to which she testified.

She said the only time she told CD about the events was the time when CD did not believe her. [ 41 ] She acknowledged that she had been to the Zebra Centre a week before testifying to view the video and that she had been given a transcript which she took home with her. When it was suggested that she had given CD the transcript she denied it. When it was suggested that it was possible that CD had looked at the transcript she said it was not. [ 42 ] In re-examination, AB testified that the content of the video GH showed her was people touching each other and having sex.

Other Crown Witnesses [ 43 ] The Crown called a now 15-year girl who was a friend of AB’s in 2017. This witness recalled that when AB, CD and EF were staying at her house for a week, in May or June 2017 AB disclosed to her “the whole truth about what had happened.” AB made this witness promise to keep what she had told her secret and she did so. Some time later the witness’s mother “sat me down” and asked her what she knew. The witness told her mother what AB had told her. This was sometime in 2018. [ 44 ] The Crown called AB’s aunt, CD’s sister.

She learned of AB’s allegations when the mother of a friend of AB’s called her and told her about them. The aunt testified that she called Social Services as a result. As I understand it, this led to AB attending at the Zebra Centre with her aunt in late May 2018 to provide the interview previously discussed. [ 45 ] The Crown called an EPS member who had been involved in the surveillance of GH leading to his arrest on these charges in August, 2018. The officer’s notes recorded that GH’s vehicle had heavily tinted windows.

Though he had not so noted, the officer agreed in cross-examination that he must not have observed tinting on the windshield because his notes did not indicate that there was tinting on the windshield and they would have so noted if there was. [ 46 ] The Crown called CD. She testified that she was in a relationship with GH from March 2013 until June 2019.

The relationship was “back and forth” for much of that time – GH and CD were not “on the best of terms.” They lived together on and off. [ 47 ] CD testified that she suspected something had happened between GH and AB just before AB’s 10 th birthday in June 2017 and CD confronted AB about it. She considered it odd that GH seemed to want to spend time alone with AB.

He had taken her to a movie which she discovered, after the fact, was Baywatch, a movie that she did not think appropriate for a nine- year-old girl and which she had said she did not want him to take AB to. [ 48 ] When GH was planning to take AB to Calgary around the time of her 10 th birthday, CD said she wanted to go too and GH told her angrily that she was not welcome. She took AB out of the situation and went to stay with her sister. This is when AB disclosed what had happened to her. [ 49 ] As I understand the evidence CD did not report what AB had told her to authorities until a year later.

As previously noted, AB’s attendance at the Zebra Centre in May 2018 appears to have been on the initiative of her aunt, not her mother. [ 50 ] When CD confronted GH about what AB had disclosed, he said that he had been in AB’s room and that she had “started to give him a hand job”. GH told CD that but for the drugs he was taking at the time, it would not have happened – he would have stopped it. He said he would get help with his drug problem. [ 51 ] After that, and even after AB’s Zebra interview which resulted in GH being arrested, the relationship between CD and GH continued.

It finally ended in June 2019. [ 52 ] CD made two statements to the police which discussed amongst other things what she knew about GH’s abuse of CD. The first was in May 2018 and the second was in April 2019. She testified that she lied in both of them – that she said what GH told her to say. She did so because she was afraid for her safety and the safety of her children. She provided a third statement, which she said was truthful, to the Crown just before the commencement of the trial.

Assessment of AB’s Credibility and Reliability [ 53 ] The evidence before me indicated that when CD went to the police it was in relation to complaints about GH’s conduct towards her, CD, which did not involve AB directly. It is apparent that CD holds very considerable animosity towards GH for whatever that conduct was. That, and that fact that she lied to police, significantly reduce her credibility and reliability in this trial. That she lied to the police out of fear for her safety and the safety of her children does not accord well with the fact that she went to the police on her own initiative.

[ 54 ] However, in my view, very little in this case depends on CD’s credibility or reliability as a witness. Almost everything depends on AB’s credibility and reliability. [ 55 ] AB’s evidence includes:

a) Her testimony that GH touched her vaginal area directly, that is, in skin to skin contact, while they were in his car in the parking lot outside the movie theatre and that he touched her in the same area on other occasions over her clothes. If this evidence is accepted as true, GH’s conduct would constitute the offences charged in Counts 1 and 2 of the Indictment.

b) Her testimony that GH forced AB to touch his penis and to rub it resulting in him ejaculating while they were in his car in the movie parking lot. If this evidence is accepted as true, GH’s conduct would constitute the offence charged in Count 3 of the Indictment.

c) Her testimony that GH showed her pornographic video’s in order to teach her things she would need to know one day. If this evidence is accepted as true, GH’s conduct would constitute the offence charged in Count 4 of the Indictment. [ 56 ] Mr. McIntyre acknowledged that AB’s evidence contains all of the elements of the four charges in the indictment.

The issue is whether AB’s evidence is credible and reliable. [ 57 ] I watched the video of AB’s Zebra interview both when it was shown in open court, and subsequently in the course of preparing these reasons. [ 58 ] I found AB’s demeanour in the video taped Zebra interview to be impressive. She was 10 years old, almost 11 when she gave the interview. Her language seemed to me to be age appropriate. Her answers to the interviewer’s questions were spontaneous – I detected nothing that would suggest she was attempting to follow a preplanned “script”.

That she knew that GH’s acts as she described them were of a sexual nature and were wrong did not appear to me to be the result of coaching, invention, or being led by the interviewer. [ 59 ] AB’s family living arrangements had been subject to many changes in the years before her Zebra interview – but there was nothing in the way she told the interviewer what had happened that suggested that she was motivated by any form of anger or distress caused by this instability. Neither, did I detect any indication that AB was motivated by a desire to cause GH harm. [ 60 ] Mr.

McIntyre submitted that CD’s attitude toward GH must have filtered down to AB. I saw nothing to so indicate. And the evidence was less than clear as to what CD’s attitude to GH was in May 2018, at the time of AB’s Zebra interview. CD had gone to the police about him, but as I understand it, she had not been forthright in whatever she told the police at that time. That CD held a negative attitude toward GH at that time, and that it could have “filtered down” to AB, to the point where AB created the story she told the Zebra interviewer is not established on the evidence. I reject this submission. [ 61 ] Mr.

McIntyre submitted that the likelihood of GH having sexually touched AB in the movie parking lot is questionable given that it is a busy parking lot and they were in the front seats of the vehicle. The evidence establishes that all the windows of the vehicle except perhaps the windshield were tinted. AB’s evidence that even the windshield was tinted was countered only by the evidence of a police officer who saw the vehicle a year after the relevant time and assumed that the windshield was not tinted because he made no note of that fact.

Further, AB’s evidence was that the car was parked in a less busy part of the theatre parking lot. I reject the submission that the events AB described are not likely to have happened because GH would have refrained from engaging in them in a place where he might be seen doing so. [ 62 ] Mr. McIntyre submitted that AB’s testimony at trial damaged her general credibility and reliability.

He noted that AB’s trial testimony suggested that there were more occasions when GH sexually abused her than she mentioned in the Zebra interview, that there were some details in her trial account that were absent from her account in the Zebra interview, that there were details of the sexual abuse described in Zebra interview which she said she could not remember at trial, that there were inconsistencies between her trial evidence and her Zebra interview evidence, in particular as to when certain things happened, specifically when GH showed her pornography, and that in the Zebra interview she appeared to clearly understand that the police were involved but at trial she testified that she had not realized that at the time of the Zebra interview. [ 63 ] In my view, to the extent these are correct observations about AB’s testimony, they do not affect her credibility.

They do not, in my view, relate to matters of significance. And, it is to be expected that the evidence of an honest witness testifying to events that occurred four years earlier would have some inconsistencies when compared to evidence given within a year of the events described in the evidence. This is especially so when the witness is a child. It is why Parliament has enacted the CC s. 715.1 exception to the rule against hearsay – to obtain and preserve a child’s evidence as to what occurred reasonably soon after the relevant events. [ 64 ] Mr.

McIntyre submitted that certain specific features of AB’s evidence damaged its credibility. For example, he referenced that AB said in the Zebra interview that until GH showed her pornography she did not know what a penis was – though she had seen that her infant brother’s body parts were not the same as hers. In my view, if this is a discrepancy at all, it falls far short of the type of discrepancy that should be taken as having significant effect on a child witness’s credibility. In any event, in my view, it did not affect AB’s credibility. [ 65 ] Mr.

McIntyre submitted that some of AB’s answers at trial betrayed that she was adapting her evidence to avoid a logical inconsistency, or in anticipation of a “trap” that she perceived an honest answer would put her in. I am confident that simply did not occur. In my view, AB gave her trial evidence in a straight forward, calm, and careful manner. In any event, these matters are incapable of tainting AB’s Zebra interview evidence – they relate to her trial evidence alone. [ 66 ] I found the 11-year-old AB to be a convincing, credible and reliable witness.

I similarly found the 14-year-old AB to be convincing, credible and reliable. I believe AB’s evidence. [ 67 ] I am satisfied that the evidence establishes GH’s guilt on all four offences charged beyond a reasonable doubt.

[ 68 ] Accordingly, GH, I find you guilty of the four offences with which you have been charged and direct that a conviction be entered in respect of each of them. Heard October 18 to 21, 2021. Dated at the City of Edmonton, Alberta this 17 th day of November, 2021. B.R. Burrows J.C.Q.B.A. Appearances: Jennifer Danker for the Crown Evan McIntyre for the Accused