R. v. Nichols, 2013 ABPC 299

In the Provincial Court of Alberta Citation: R. v. Nichols, 2013 ABPC 299 Date: 20131118 Docket: 121024228p1 Registry: Wetaskiwin Between: Her Majesty the Queen Crown - and - Garth Owen Nichols Accused Restriction on Publication Identification Ban – See the Criminal Code,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. Reasons for Decision of the Honourable Judge B.D. Rosborough [ 1 ] In August of 2012, police arrested Garth Owen Nichols ( ‘ Nichols') and charged him with the sexual assault of C.J.B.

Like many cases of this kind, there were but two witnesses to the interaction between Nichols and C.J.B. These are my reasons for finding

Nichols guilty of this crime. The Charge [2] On August 28th, 2012 Nichols was charged with the offence that he: on or about the 27th day of August, 2012, at or near Wetaskiwin, Alberta, did unlawfully commit a sexual assault upon [C.J.B.], contraryto

Section 271 of the Criminal Code of Canada. The prosecution elected to proceed by

summary conviction on September 20th, 2012 and, after interim appearances, the matter wasscheduled for trial on October 30th, 2013. The trial was heard and determined on that day with written reasons to follow. Burden of Proof [3] Nichols is presumed to be innocent of the charge brought against him unless and until the prosecution proves all essentialelements of that charge beyond a reasonable doubt. Reasonable doubt means a doubt that is based upon reason and common sense and islogically connected to the evidence or absence of evidence: it is not based on sympathy or prejudice.

This does not mean that the Crownis required to prove all elements to an absolute certainty as this would be an impossibly high standard. However, the reasonable doubtstandard falls much closer to absolute certainty than to proof on a balance of probabilities: R. v. Lifchus, (SCC), [1997]3 S.C.R. 320 and R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144. [4] Since Nichols has testified in this trial, I must consider his evidence and the issue of credibility within the analyticalframework prescribed by the Supreme Court of Canada in cases such as R. v. W.D., (SCC), [1991] 1 SCR 742 and R. vJ.H.S., 2008 SCC 30.

That framework has recently been commented upon by the Alberta Court of Appeal in the case of R. v. Gray, 2012ABCA 51 where the applicable framework was restated in terms which I will paraphrase for the purpose of this trial: (

I) The burden of proof is on the Crown to establish Nichols' guilt beyond a reasonable doubt, and that burden remains on theCrown so that Nichols is never required to prove his innocence, or disprove any of the evidence led by the Crown. (ii) In that context, if Nichols' evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves me with a reasonable doubt that it may be true, then I am required to acquit. (iii) While I should attempt to resolve conflicting evidence bearing on the guilt or innocence of Nichols, a trial is not a credibilitycontest requiring me to decide that one of the conflicting versions is true.

Any inability to decide between exculpatory evidence and otherevidence that incriminates Nichols will usually indicate that I have a reasonable doubt, which again must work to the benefit of Nichols. (iv) In the event Nichols' evidence (or where applicable, other exculpatory evidence) is entirely disbelieved such that it does not raisea reasonable doubt, I may not convict unless I am satisfied that the Crown has proven Nichols' guilt beyond a reasonable doubt by otherevidence that I do accept.

I pause to add that, in the event that I reject the evidence of Nichols, that rejection does not add to or bolster the case for the prosecution. Essential Elements [5] The essential elements of the crime of sexual assault said to have been committed by Nichols are as follows: -the date of the occurrence: in this case, on or about August 27th, 2012

-the jurisdiction in which it occurred: in this case, Wetaskiwin, Alberta -Nichols' identity as the individual who interacted with C.J.B. -that Nichols assaulted C.J.B. -that the assault violated C.J.B.'s sexual integrity [ 6 ] Based upon the evidence I have heard and the argument of counsel, the following essential elements or portions thereof appear not to be in dispute.

Those elements are: -the date of the occurrence -the jurisdiction in which it occurred -Nichols' identity as the individual who interacted with C.J.B. on the date in question Both Nichols and C.J.B. testified that Nichols inserted a finger or fingers into C.J.B.'s vagina and that this was all or part of a sexual interaction between the two.

Notwithstanding these observations, however, I have considered the evidence called at this trial in relation to each of these essential elements and this incident of sexual interaction and am satisfied that the prosecution has led evidence sufficient to prove them beyond a reasonable doubt. Issue [ 7 ] The unencumbered issue for determination in this trial is whether the prosecution has proven beyond a reasonable doubt that the sexual interaction between Nichols and C.J.B. constituted a sexual assault .

More particularly, has the prosecution proven beyond a reasonable doubt that Nichols' intentional application of force to C.J.B. was undertaken without her consent? Position of the Parties [ 8 ] The prosecution submits that the evidence of C.J.B. had a ring of truth to it and ought to be believed. There is, of course, no need for corroboration of C.J.B.'s evidence. Nevertheless, much of C.J.B.'s testimony was confirmed by Nichols in his own evidence.

Her evidence also conformed to that given by Mark Falco ( ‘ Falco'). [ 9 ] Nichols' evidence, on the other hand, ought to be rejected and not give rise to any reasonable doubt. It was incredible. He would have the court believe that 17 year C.J.B. (who met Nichols casually on only 2 prior occasions) entered his bus, stripped naked, climbed into his bed and invited him to engage in sexual activity.

Indeed, Nichols testified that C.J.B. invited him to apply oil and massage her and, when he confined his activities to that, she said: "Is that all?" The court must find that C.J.B. was either mistaken or that she fabricated her evidence. The prosecution concedes that the investigation was defective and that the manner of taking C.J.B.'s videotaped statement was problematic. In the end, however, the offence has been proven beyond a reasonable doubt. [ 10 ] The defence submits that the court must not lose sight of the credibility inquiry dictated by cases such as R. v. W.D.

Even if Nichols were to be disbelieved, the evidence at trial may indicate that C.J.B.'s version of events falls short of the full story and thereby raises a reasonable doubt. The court must not be distracted by considerations of the morality or virtue of Nichols' conduct. The sole inquiry is whether the prosecution has proven beyond a reasonable doubt that Nichols committed a sexual assault. [ 11 ] Over and above deficiencies presented by the manner in which the crime was investigated and the videotape statement elicited, the court should have serious reservations about the veracity of C.J.B.

There is no evidence that she was threatened into any sexual activity or confined by Nichols. Moreover, the door to the bus and the bed where the acts were said to have occurred were only a few feet apart. The complainant would have the court believe that Nichols sexually assaulted C.J.B. on the bed with the door to the bus left open throughout . Other difficulties in C.J.B.'s evidence related to use of a telephone to text Falco and the fact that Nichols found Falco to be polite and invited him into the trailer at the time C.J.B. was naked on his bed .

Nichols cooperated fully with the police and elected to forego his right to remain silent in the face of a serious criminal allegation. These are not the acts of a guilty man.

[12] The defence of ‘mistake of fact' or ‘mistaken belief in consent' was canvassed in argument. Nichols disclaims any reliance onthat defence; it is his submission that C.J.B. consented to engage in sexual activity with him. Sexual Assault [13] The crime of sexual assault is created by s.271 C.C. Parliament has defined the term ‘assault' in s.265(1) C.C. The allegationof assault in this case would be satisfied by proof beyond a reasonable doubt of the conduct described in s.265(1)(

a) C.C. which providesthat: A person commits an assault when, without the consent of another person, he applies force intentionally to that other person, directly orindirectly. [14] In order to constitute either an assault or a sexual assault the prosecution must prove beyond a reasonable doubt that thecomplainant did not consent to the intentional application of force. ‘Consent' is not defined for the crimes of assault particularized inss.266, 267 and 268 C.C. Nevertheless, Parliament has prescribed certain circumstances in which "no consent is obtained". Thesecircumstances are made applicable to the crime of sexual assault by s.265(2) C.C. which states:

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. (emphasis added) [15] Paragraph 265(3)(

b) C.C. is one of the circumstances in which Parliament has prescribed no consent is obtained. It is ofrelevance to this case for reasons which will follow. It provides that: 265(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of ... (

b) threats or fear of the application of force to the complainant or to a person other than the complainant. [16] The ambit of s.265(3)(

b) C.C. was specifically addressed by the court in R. v. Ewanchuk, (SCC), [1999] 1S.C.R. 330 (‘Ewanchuk'). L'Heureux-Dube J. noted in that case (at paras. 85-86): I agree with Major J. that the application of s. 265(3) requires an entirely subjective test. In my opinion, as irrational as a complainant'smotive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent. Accordingly, I agree with Fraser C.J.that any objective factor should be considered under the defence of honest but mistaken belief.

However, in my view, Major J. unduly restricts the application of s. 265(3) to instances where the complainant chooses "to participate in,or ostensibly consent to, the touching in question" (at para. 38; see also para. 36). Section 265(3) applies to cases where the "complainantsubmits or does not resist" (emphasis added) by reason of the application of force, threats or fear of the application of force, fraud or theexercise of authority. Therefore, that

section should also apply to cases where the complainant is silent or passive in response to suchsituations. [17] Parliament has prescribed a definition of consent for the crime of sexual assault. Subsection 273.1(1) C.C. provides that: Subject to subsection (2) and subsection 265(3), "consent" means, for the purpose of sections 271, 272 and 273, the voluntary agreementof the complainant to engage in the sexual activity in question. [18] In addition to proving an assault, however, the prosecution must also prove beyond a reasonable doubt that the assault

[18] In addition to proving an assault, however, the prosecution must also prove beyond a reasonable doubt that the assaultviolated the sexual integrity of the complainant. And Parliament has not defined what constitutes a ‘sexual' assault. Nevertheless,guidance has been provided by the Supreme Court in the case of Regina v. Chase, (SCC), [1987] 2 S.C.R. 293. In thatcase, the court described a ‘sexual' assault in the following terms: Sexual assault is an assault within any one of the

definitions of that concept in s. 244(1) [now s.265(1)] of the Criminal Code which iscommitted in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied indetermining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all thecircumstances, is the sexual or carnal context of the assault visible to a reasonable observer"... .

The part of the body touched, the natureof the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surroundingthe conduct, including threats which may or may not be accompanied by force, will be relevant ... The intent or purpose of the personcommitting the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct issexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor indetermining whether the conduct is sexual.

It must be emphasized, however, that the existence of such a motive is simply one of manyfactors to be considered, the importance of which will vary depending on the circumstances. (cases and citations omitted) [19] In Ewanchuk, the Supreme Court also defined the actus reus and mens rea of the crime of sexual assault. In essence, theactus reus of a sexual assault requires proof beyond a reasonable doubt that the accused: (1) applied force to the complainant; (2) did soin such a manner as to violate her sexual integrity; and (3) did so without her consent.

The first two of these elements are determined byan objective assessment of the evidence. The final element is determined by consideration of the complainant`s subjective or internalstate of mind toward the application of force at the time it occurred. The mens rea of sexual assault requires proof beyond a reasonabledoubt that the accused intended to touch the complainant and that touching took place in the circumstances prescribed.

See: paras.24-30. [20] The historical development of our criminal law relating to the crime of sexual assault has been compellingly described by theSupreme Court over the past two decades. See: Ewanchuk, R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577. I will notrecount that development in these reasons. Suffice it to say that the definition of consent now found in s.273.1 C.C. was but one of manystatutory directions by Parliament to the courts designed to remove artificial barriers to the fair prosecution of sexual assaults.

Therationale for many of these barriers has been referred to by the Supreme Court as ‘rape mythology'. [21] It is important to note some of this remedial legislative action for the purposes of this case, however. First, Parliamentinstructed courts that, " ... no corroboration is required for a conviction [for the crime of, inter alia, sexual assault] and the judge shallnot instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration." See: s.274 C.C.

A ruling by me that theevidence of C.J.B. alone (i.e. in the absence of corroboration) could not support a ‘safe' guilty verdict would constitute a reversible errorof law. The presence of corroboration in any case must be viewed in light of this statutory direction. [22] Second, Parliament statutorily abrogated what had come to be known as the ‘doctrine of recent complaint'.

Section 275 C.C.signalled a caution to courts not to apply stereotypical thinking to human conduct taking place in the context of sexual interaction. Not allvictims of sexual aggression ‘raise a hue and cry' at the first reasonable opportunity, for instance. C.J.B.'s conduct on the occasion inquestion must be assessed in the context of the presumption of innocence and the requirement of proof beyond a reasonable doubt. Itmust not be assessed on the basis of stereotypical suppositions of how women should or are supposed to act in the face of sexualaggression.

Credibility [23] The assessment of credibility requires that I apply common sense to the evidence of each witness, both standing on its ownand in the context of the case as a whole. Doing so often requires consideration of factors such as motive, interest, opportunity toobserve, ability to recollect and do so accurately. In R. v.

White, (SCC), [1947] S.C.R. 268 the Supreme Court also notedthat, " … [i]t is also important to determine whether he [the witness] is honestly endeavouring to tell the truth, whether he is sincere andfrank or whether he is biased, reticent and evasive." A similar notion was expressed by our own Court of Appeal in R. v.

Maygard, 2013ABCA 214 where the court stated that, " … assessing credibility is not limited to applying objective factors like inconsistencies ormotives to lie." [24] Nevertheless, it is important to emphasize that, when considering the credibility of witnesses, I must determine not onlywhether the witness is attempting to be deceitful by lying or misrepresenting the facts but also whether the witness' evidence is reliablein the sense of accurately reporting the facts. In short, I must pay heed to the distinction between the ‘credit' to be accorded a witness'evidence as well as its ‘reliability'.

I note the distinction between these terms as noted by the authors of Canadian Criminal Evidence atpage 27-2.

[ 25 ] Finally, while an assessment of credibility need not necessarily take place in the order indicated in cases such as W.D. or Gray , provincial courts of appeal have suggested that doing so is highly desirable. It is important to stress that this is not a contest of credibility as between the Nichols and C.J.B. Proof beyond a reasonable doubt requires considerably more than a comparison of versions of events and selection of the version that seems most probable. Nichols' Evidence [ 26 ] At the time of his interaction with C.J.B., Nichols was a 59 year old retired construction worker.

He resided in a large motorhome (referred to by most witnesses as a bus) located in Wetaskiwin, Alberta and had a Harley Davidson motorcycle that he would operate from time-to-time. C.J.B. was born on [...] 1995; she was 17 years old when she first met Nichols. There had been no prior association between the two. [ 27 ] In examination-in-chief, Nichols testified that he did not ask C.J.B. how old she was. He assumed that she was 18 years old because of her references to ‘ partying' and ‘ drinking'.

This conflicted with his statement to police where he advised them that C.J.B. had told him the first time they met that she was 18 years old. When confronted with that apparent contradiction, Nichols acknowledged having made the statement to police but maintained his evidence at trial (that he had only assumed that C.J.B. was 18 years old). Of course, C.J.B. testified that she told Nichols that she was 17. [ 28 ] This disparity in age was important to Nichols. In the first place, it was a significant disparity: some 32 years.

The chronological disparity was reinforced by the fact that C.J.B. impressed as a comparatively diminutive, unsophisticated teenager. Nichols, on the other hand, is a mature, tall man of significantly larger stature. When confronted with the age disparity in cross-examination, Nichols testified that the age difference was the reason why he would not engage in sexual contact with C.J.B. It was his evidence that he even told C.J.B. on one occasion that they could only be friends. [ 29 ] Nichols testified that he first encountered C.J.B. in the summer of 2012.

She was walking home in the rain and he stopped to offer her a ride. She agreed and he drove her to her residence. He next saw her outside the Boston Pizza in Wetaskiwin and, no doubt noting her interest in motorcycles, asked if she wanted to accompany him on his motorcycle to Millet for ice cream. Once again, C.J.B. agreed. The only other time (apart from court proceedings) where he had contact with C.J.B. was on August 27th, 2012. [ 30 ] Nichols ’ interaction with C.J.B. prior to August 27th, 2012 was strictly casual.

He confirmed in cross-examination that there had been no intimacy between him and C.J.B. prior to that date. There was no discussion of engaging in intimate contact, no kissing, not even hand-holding. [ 31 ] Nichols testified that on August 27th, 2012 he saw C.J.B. carrying two bags of empty bottles to the bottle depot. He stopped and spoke to her. When it came to C.J.B.'s attention that Nichols was driving his motorcycle to Ponoka with a friend, she asked to come along. Nichols agreed and the three then went to Ponoka. Upon return, C.J.B. is said to have asked Nichols if she could hang out at his bus.

Nichols testified that he attempted to dissuade her as he had work to do on his bus. Nevertheless, Nichols and C.J.B. did return to the bus that day. When asked in cross-examination why he would take this young woman back to his bus if not to engage in some type of sexual activity, Nichols responded with word or words to the effect that he realized it wasn't the best choice. [ 32 ] When they arrived at the bus, C.J.B. is said to have entered the bus and taken one of Nichols' beer coolers. He asked her what movie she wanted to watch and she replied: "The Heist".

Nichols then testified that C.J.B. asked if she could use the sleeping bag on his bed. When he agreed, she took off all her clothing and entered the sleeping bag. [ 33 ] Nichols testified that he then asked her if she would like a massage and she agreed. He took some olive oil and rubbed it on her body. There was some evidence that Nichols believed this to be helpful for treating psoriassis, such as that which C.J.B. had.

When he stopped momentarily, Nichols testified that C.J.B. stated: "Is that all?" He then began rubbing her vagina. [ 34 ] On cross-examination, Nichols agreed that he had referred to digital penetration of C.J.B's vagina in the early parts of his statement to the police as ‘ petting'. He denied having difficulty inserting his finger into her vagina. It was his evidence that he could not recall telling police that C.J.B. enjoyed having his finger in her vagina and that he could "barely get it in".

[ 35 ] Nichols testified that his cell phone was inoperable on the date in question. Nevertheless, he confirmed that a young man (Nicholas Falco - ‘ Falco') showed up at his bus at or near the time of his sexual interaction with C.J.B. Falco was holding a baseball bat. Nichols attended the door and had a nightstick nearby. On questioning by the court, Nichols testified that the nightstick was simply present at the time he spoke to Falco and he had only incidental contact with it.

When pressed on cross-examination by Crown Counsel, he resiled from that and conceded that he took hold of the nightstick in response to seeing Falco with a baseball bat. He feared he might be struck with the bat. [ 36 ] Nichols admitted a criminal record of previous convictions for assault and theft in 1995. [ 37 ] I do not believe Nichols' evidence. It was apparent during his testimony that he was not spontaneously forthcoming about facts in issue that painted him or the situation in an unfavorable light.

To cite but one instance, he struggled to depict C.J.B. as a more mature young woman than she obviously was. To the extent that demeanor plays a role in the credibility assessment, Nichols' demeanor has satisfied me that the evidence he gave fell far short of the full story. [ 38 ] I have noted that his evidence at trial was inconsistent in certain particulars with his statement to the police. Moreover, I am satisfied that Nichols deliberately misled the court when initially testifying about his nightstick at the doorway of his bus.

He would have had the court believe that it was at that location coincidentally and his touching of it was unrelated to Falco's attendance. This would be curious, given the fact that Falco was armed with a baseball bat. But Nichols later confirmed in cross-examination that he had armed himself with the nightstick to protect himself from any attack by Falco. [ 39 ] Nichols has a criminal record with one conviction involving moral turpitude.

I do not attribute significant weight to that conviction (given its age) but take it into account in my overall credibility assessment. [ 40 ] The type and manner of sexual interaction between individuals is not readily or uniformly predictable. And I caution myself in that regard before considering the inherent plausibility of the scenario attested to by Nichols. Even with such caution, however, the account given by Nichols is incredible. That a 59 year old man could interact sexually with a 17 year old he barely knew is not, of itself, unbelievable.

However, the nature of Nichols' relationship with C.J.B. and the circumstances in which sexual interaction between the two is said to have occurred render this scenario more fantasy than reality. [ 41 ] Nichols had only had contact with C.J.B. on two occasions prior to August 27th, 2012. The first occasion was insignificant. There had been no intimacy between the two of them at any time during those contacts: there is no evidence of flirting, no intimate conversation, no touching, no kissing, not even a hug.

Nevertheless, Nichols' evidence is that on August 27th, 2012 the complainant asked to come back to his bus, entered to obtain an alcoholic beverage, stripped naked on his bed and agreed to a body massage with olive oil. When he stopped at one point, she stated: "Is that all?" and then laid passively as she enjoyed him digitally penetrating her vagina. [ 42 ] It must be borne in mind that Nichols had apprehensions about the disparity in age between himself and C.J.B. They were such that he knew there ought to be no sexual interaction. And he had instructed C.J.B. that they would only be friends.

In this state of mind, he testified that he nevertheless engaged in significant sexual interaction with her. [ 43 ] Disbelieving Nichols' evidence, I have nonetheless re-examined it in the context of the evidence as a whole in order to determine whether it gives rise to a reasonable doubt. It does not. The evidence as a whole does not independently support or otherwise give rise to a reasonable doubt about Nichols' version of events.

C.J.B.'s Evidence & the Prosecution's Case [ 44 ] I have assessed the evidence in order to determine what evidence I accept and whether that evidence proves beyond a reasonable doubt that Nichols sexually assaulted C.J.B. on the occasion in question. I am satisfied that each essential element of the offence has been proven beyond a reasonable doubt.

[ 45 ] Earlier in this proceeding, I expressed reservations about the manner in which a videotaped statement from C.J.B. was taken. I noted that this teenaged complainant had her mother present (and participating) in the interview. I also noted that the investigator repeatedly suggested answers to C.J.B. during the course of the interview. Nevertheless, I was and remain satisfied that admission of that videotaped statement into evidence would not interfere with the proper administration of justice.

I am satisfied that, despite the manner in which the interview was conducted, C.J.B. had an independent recollection of the events discussed and honestly narrated the facts relating to it. [ 46 ] I am aware that there are some inconsistencies in C.J.B.'s evidence. I also noted, however, that when she was confronted with those inconsistencies in cross-examination, C.J.B. did not provide fanciful explanations for them. She either acknowledged the inconsistency or explained it in plausible terms.

I do not consider any inconsistency such as to raise a reasonable doubt either on its own or when taken with the evidence as a whole. [ 47 ] I believe C.J.B.'s evidence that Nichols travelled to his bus after their motorcycle trip to Ponoka. He coaxed her into the bus and spoke to her while she was seated in one of the chairs inside. During the course of their conversation, he idly stroked her knee area with the fingernails of his hand. She was frightened by this and froze. She said nothing. Nichols kneeled in front of C.J.B. and began removing her pants.

She did not have shoes on but kicked him in the face area, causing him to fall backwards. She believed that he was angry at that time as his face was red. He regained his position and removed her pants and the clothing from her upper body. It was at this juncture that Nichols began touching her vaginal area. [ 48 ] Nichols carried C.J.B. to the bed and continued touching her. She resisted and once again kicked him, forcing him backwards. He retook his position near her feet, touched her breasts and eventually inserted his ‘ pointer finger' into her vagina.

She was hurt by this and experienced pain for a considerable time thereafter. Nichols then halted his sexual activity and walked to the rear of the bus to obtain a movie. I believe C.J.B.'s evidence that she permitted Nichols to apply some olive oil to psoriasis on her arm by rolling up the sleeve. I reject his evidence that she took off all of her clothing. [ 49 ] It was when Nichols was in the rear of the bus that C.J.B. texted Falco to come get her. She remained on the bed with the sleeping bag around her. Falco arrived at the bus a short time afterwards.

I believe Falco's evidence that he received a text from C.J.B. and immediately attended at Nichols' bus. He inquired after C.J.B. and she exited the bus after a short delay. She was very quiet at that time. He drove her home where police were called. [ 50 ] The police investigation following the report of sexual assault was haphazard at best. I have earlier referred to the manner in which the videotaped statement of the complainant was taken. The police also obtained a ‘ rape kit' relating to C.J.B. but nothing was done with it once swabs were taken.

Similarly, a search warrant was executed on Nichols' bus and various items were seized. There was no followup in relation to that search. [ 51 ] Much of C.J.B.'s evidence was corroborated, however. Nichols himself testified as to the manner and limited nature of the contact between the two prior to August 27th, 2012. He also confirmed C.J.B.'s motorcycle trips with him, the trip to Ponoka and re-attendance at the bus, the lack of flirtation, teasing, intimacy or touching prior to the sexual assault, the place of the sexual assault and the fact that it included digital penetration.

C.J.B.'s evidence of texting Falco is also corroborated by Falco and proven by his prompt attendance at Nichols' bus. There is a disparity between the evidence of C.J.B. and Nichols with respect to whose cell phone was used. Although I do not consider this disparity material, I accept C.J.B.'s evidence in that regard. [ 52 ] That Nichols left open the door to his bus while he sexually assaulted C.J.B. is not, of itself or when combined with the remainder of the evidence, remarkable. He did not want to leave C.J.B. once he had begun sexually touching her.

They were not in the doorway and there is no evidence of anyone else being present near the bus until Falco arrived. Interaction between the two likely lasted a matter of minutes. [ 53 ] C.J.B.'s conduct following the sexual assault is also consistent with her evidence. [ 54 ] I am satisfied that C.J.B. was frightened by Nichols' first physical contact with her in the bus: stroking her knee casually, followed by touching of her vaginal area and, eventually, digital penetration of her vagina. She ‘ froze' as a result.

This is entirely reasonable in circumstances where an unsophisticated and much smaller female is touched in this manner by a mature older man of

considerably larger stature. Nothing in their antecedent contact would have predicted that type of conduct. C.J.B.'s fear negated any suggestion of consent. It also explains C.J.B.'s failure to flee from the bus. Furthermore, having rejected Nichols' suggestion that C.J.B. stripped, spread her legs for him and stated, "Is that all?", I find that there was no voluntary agreement to engage in sexual activity. [ 55 ] I have also noted that C.J.B.'s evidence was that Nichols armed himself with a nightstick when Falco attended the door. As previously noted, Nichols first denied this.

Under cross-examination he later confirmed that he had armed himself, just as C.J.B. had alleged. [ 56 ] Where there is any conflict between the evidence of C.J.B. and that of Nichols, I expressly accept C.J.B.'s evidence and reject that of Nichols. Nichols lured C.J.B. to his motorhome following their trip to Ponoka and after having gained her trust by appealing to her interest in motorcycles. Once back at his motorhome, he induced her to enter and gradually escalated his physical contact to the point of violating her sexual integrity.

Those violations included the touching of her knee, touching of her vaginal area over and under her clothing, forcibly removing her clothing, touching her breast area and, ultimately, inserting his finger into her vagina. I find him guilty of sexual assault. Heard on the 30 th day of October, 2013. Dated at the City of Wetaskiwin, Alberta this 12 th day of November, 2013. B.D. Rosborough A Judge of the Provincial Court of Alberta Appearances: T. Wilson, Esq for the Crown G. Allen, Esq for the Accused