R v DAC, 2023 ABKB 87

Court of King’s Bench of Alberta Citation: R v DAC, 2023 ABKB 87 Date: 20230217 Docket: 191054238Q1 Registry: Edmonton Between: His Majesty the King Crown - and - DAC 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 By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Memorandum of Decision of the Honourable Justice C.L. Arcand-Kootenay _______________________________________________________

[ 1 ] DAC was charged as follows: Count 1: That he, between the 1 st day of June, 2004, and the 31 st day of July, 2014, both dates inclusive, at or near Edmonton, Alberta, did unlawfully commit a sexual assault upon TC, contrary to

section 271 of the Criminal Code of Canada . Count 2: That he between the 1 st day of June, 2004, and the 31 st day of May, 2014, both dates inclusive, at or near Edmonton, Alberta, did for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of TC, a person under the age of sixteen years, contrary to

section 151 of the Criminal Code of Canada . Count 3: That he, between the 1 st day of June, 2004, and the 31 st day of May, 2014, both dates inclusive, at or near Edmonton, Alberta, did, for sexual purpose, unlawfully invite, counsel or incite TC, a person under the age of sixteen years to touch, directly or indirectly, with a part of the body or with an object, the body of DC, contrary to

section 152 of the Criminal Code of Canada . Count 4: That he, between the 1 st day of June, 2004, and the 31 st day of July, 2014, both dates inclusive, at or near [redacted], Alberta, did unlawfully commit a sexual assault upon TC, contrary to

section 271 of the Criminal Code of Canada . Count 5: That he between the 1 st day of June, 2004, and the 31 st day of May, 2014, both dates inclusive, at or near [redacted], Alberta, did for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of TC, a person under the age of sixteen years, contrary to

section 151 of the Criminal Code of Canada . Count 6: That he, between the 1 st day of June, 2004, and the 31 st day of May, 2014, both dates inclusive, at or near [redacted], Alberta, did, for sexual purpose, unlawfully invite, counsel or incite TC, a person under the age of sixteen years to touch, directly or indirectly, with a part of the body or with an object, the body of DC, contrary to

section 152 of the Criminal Code of Canada . Count 7: That he, between the 1 st day of June, 2004, and the 31 st day of July, 2014, both dates inclusive, at or near BL, Alberta, did unlawfully commit a sexual assault upon TC, contrary to

section 271 of the Criminal Code of Canada . Count 8: That he, between the 1 st day of June, 2004, and the 31 st day of May, 2014, both dates inclusive, at or near BL, Alberta, did for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of TC, a person under the age of sixteen years, contrary to

section 151 of the Criminal Code of Canada . Count 9: That he, between the 1 st day of June, 2004, and the 31 st day of May, 2014, both dates inclusive, at or near BL, Alberta, did, for sexual purpose, unlawfully invite, counsel or incite TC, a person under the age of sixteen years to touch, directly or indirectly, with a part of the body or with an object, the body of DC, contrary to

section 152 of the Criminal Code of Canada . LEGAL PRINCIPLES [ 2 ] This case raises issues of credibility and reliability and involves the application of the presumption of innocence. This presumption, enshrined in s11(

d) of the Charter , requires that an accused cannot be convicted unless each essential element of the offence has been proven beyond a reasonable doubt. This means that the burden is on the Crown to prove the guilt of the accused beyond a reasonable doubt. This burden remains on the Crown throughout the trial. [ 3 ] If a reasonable doubt exists as to the guilt of the accused, he or she must be acquitted. [ 4 ] The Supreme Court of Canada has given clear guidelines to trial judges on the interplay of reasonable doubt and credibility.

A trial judge need not firmly believe or disbelieve any witness. [ 5 ] The trial judge must determine whether the evidence that is accepted proves the guilt of the accused beyond a reasonable doubt. If it does not, then the trial judge must acquit. If the evidence that is accepted does meet that standard of proof, then and only then, may the accused be found guilty. R. v.

W. (D.) , [1991] 1 S.C.R. [ 6 ] Finally, a trial judge may believe some, all or none of the evidence of any witness. [ 7 ] In all cases, the trial judge must assess the credibility of each witness and of documents and of other forms of evidence in relation to each element to be proved. ANALYSIS [ 8 ] I will begin by summarizing the evidence with my analysis of the law. This

summary is not intended to be exhaustive. [ 9 ] As noted earlier, the accused is charged with nine offences. [ 10 ] The complainant testified in this case. The complainant was the Crown’s only witness. No exhibits were entered during the trial. [ 11 ] The complainant was 22 years of age at the date of trial. [ 12 ] The complainant identified the accused in the courtroom. Identity is not in issue. The Complainant’s Evidence

[ 13 ] The complainant testified that she lived in Millwoods from 6 months to 6 years of age. Then in Castledowns from 6 to 8 or 9 years of age. Then the family moved to a town in Northern Alberta (the “town”) when she was about 8 or 9 years until she was 17 years. She never lived in BL, that was a cabin that her grandpa had, and they would just go there on the weekends, to go fishing and camping. [ 14 ] The complainant testified she has two younger brothers, and a younger sister. 1.

The complainant testified as follows regarding when she lived in Millwood’s when she was turning 4: [ 15 ] The complainant testified that they lived in a townhouse in Millwoods. Her brother R had been born and was a baby at this time. Q: What is the first thing that you remember that happened between you and your father that brings you here to court? A: The main instance that I remember would be downstairs on the couch watching Trailer Park Boys.

That’s the main thing I remember in Millwoods. (Page 11, lines 12 – 15) [ 16 ] She testified that “it was nighttime, and it was just me and my father on the couch laying down on our sides…spooning, and I remember him – we’re watching the television show, and I remember him thrusting his dick in between my legs.” [ 17 ] She was asked what she was wearing. She testified she did not remember, but “I would most likely be wearing pajamas, and he would just be in – I remember underwear or a t-shirt. I remember he always walked around that house like that”. Q: Tell us in as much detail as you can what happened.

A: So we’re on our side, and we were watching the show. And he is just – my pants, I would say, around my knees, and he would be thrusting his dick in between my legs in my vagina, and that’s – that’s what I remember from that incident of being 4 or 5. (Page 14, lines 11 – 15) [ 18 ] The complainant is questioned further by the Crown: Q: Okay. Who put your pants and underpants down there? A: My father, I believe, because he tried to – I honestly remember just the memory in the head of him thrusting his dick in between my legs.

Everything else other than that I – is a blur honestly. (Page 15, lines 3 to 6). [ 19 ] The complainant’s testimony changed as she described what happened on that date. When first questioned about the incident, her evidence was that the accused was “thrusting his dick in between my legs”. When questioned further by the Crown, her evidence was as follows: “thrusting his dick in between my legs in my vagina”. And, when asked a third time, her evidence returned to “thrusting his dick in between my legs”.

Thus, the complainant’s testimony with respect to an essential element of the offence during direct examination changed noticeably in the span of a few minutes. Her testimony was self-contradictory. 2. Incident at the home in a town in northern Alberta (the “town”): Q: Now, let me ask you did any of this involve any sort of penetration? A: There was – no. But there was one time in [redacted]. We were in the bathroom, and he was – we’re standing up, and he was thrusting his dick in between my legs. And I was young at that time. I didn’t even know I had a vagina, and he may have accidently penetrated.

But he said, Sorry, and I started crying. And – and then after that it stopped. (Page 22, line 34 – 39) ... [ 20 ] The complainant is further testifying regarding the bathroom incident in town, and the Crown asks as follows: Q: Aside from that, is that the only time there was any penetration that occurred? A: Yes. That’s the only time, yes. (Page 25, line 1, 2) [ 21 ] In Cross Examination the following questions were put to the complainant regarding penetration: Q: At page 6 of that transcript, you make clear to the officer that sometimes he would put his dick in between your legs? A: Yeah.

Q: But he would never penetrate, right? A: Yes. Q: This is line 155 and following. A: Yes. Q: And you were telling the truth to the officer when you said that, right? A: I – he never meant to penetrate me, no. Q: I’ve had page 8, line 218. You told the officer when they asked: (as read)

Q Ever touch your breast or anything or— A Um, no, but he has touched his dick with my vagina, but only on the surface of my vagina, Right? A: Yes. Q: And earlier you made it clear to the officer that your father never digitally penetrated you, right? It was on the surface? A: Yeah. Q: And you were being truthful when you told that to the officer, right? A: Yes. (Page 97, lines 4 – 31) [ 22 ] I note in the Complainant’s evidence in the Trial Transcript at page 14, lines 13 and 14 she said “in her vagina” for the Trailer Park Boys incident.

I find her evidence inconsistent and self-contradictory regarding penetration. This is a major detail in proving an essential element of the offence 3. The last incident complainant recalls: [ 23 ] The complainant is asked the following in direct examination: Q: What’s the last incident sexual actions from your father towards you that you remember? A: I remember I was either 13 or 14, and I got into my first relationship I’ve ever had. His name was Justin, and I remember – I remember coming into the house.

I remember just no one else being home, and I think I was grabbing something to get ready to go out to my grandma’s or my boyfriend’s. I can’t remember what I was doing. (Page 38, line 1 – 6). ...

A: But, I remember I was just walking down the hallway just getting ready, grabbing a few things, and I remember him pulling down my pants and started touching me, and it was just when I got my first period. (Page 38, line 9 -11) [ 24 ] In cross examination the complainant’s testimony is as follows: Q: So I believe the last incident you testified about, the last one that occurred that you remember occurring ages 13 or 14. Is that right? A: Yes. Q: And this was right around the time you first started dating Justin Sox, right? A: Yes. Q: Okay.

So, if my memory is correct, you described the Court earlier this morning that you had popped in the home to grab something, you were going to be going somewhere, right? A: Yes. Q: And your evidence was your father pulled your pants down and started touching your vagina, right? A: Yes. Q: And assuming that occurred – or can you tell me where that occurred? A: In my parents’ bedroom. (Page 91, lines 3 – 20) ... Q: And you’re laying on your parents’ bed, right? A: Sat me – no. Standing up and he was touching me, and then he noticed that I was bloody... Q: So you were standing up? A: Yes.

And then he may have sat me on the bed. Q: Okay. When you say you’re standing up, where did that take place? A: Right in front of the – the foot of the bed. (Page 91, lines 31 – 39) ... Q: --when this assault occurred, my recollection in either your police statement or the preliminary inquiry you never described that incident happening when you were standing, right?

A: The last time he did it to me? Q: Yes. A: I can’t remember if I explained to them if I was standing or sitting. Q: The way you talked about it before is you said you were laying on the bed, right? A: Maybe not laying on the bed. I should have said sitting – first standing and then sat me on the bed. (Page 92, lines 3 – 13) Q: So with respect to preliminary inquiry transcript, I believe it’s page 7 you talk about this incident, and for fairness – and do you have the preliminary inquiry transcript before you? That would be transcript from August 25th, 2020. A: One second.

Q: So page 7, this would be around line 25, and so the – do you have page 7 before you? A: Yes, I got page 7. Q: The way you described it at the preliminary inquiry was that – this is line 27: “He was – made me get on the bed, and he looked at my vagina”. And in the prior line you talked about: (as read) And I remember that I got home from hanging out with him, and I had just got my period. And he was – made me get onto the bed, and he looked at my vagina, Right?

A: Yeah. (Page 92, line 28 to Page 93, line 5) [ 25 ] The complainant’s evidence is internally contradictory and inconsistent with respect to a major detail concerning this alleged incident. I also consider the age of the complainant, 13, when this alleged incident occurred. She is not a young child. Her evidence as to what happened, and where it happened was self-contradictory. In direct examination she testifies the location of the incident is in the hallway, and in cross examination she testifies the location is in her parent’s bedroom. She testified that he touched her vagina in the trial before me.

The preliminary inquiry record was read in during cross examination, at the preliminary inquiry she testified that he looked at her vagina. The complainant confirmed her testimony from the preliminary inquiry on the record before me. I find her sworn testimony in regards to an essential element is self-contradictory. 4. Computer and pornography incident: [ 26 ] In cross examination the complainant was asked the following: Q: So earlier today you testified about an incident in [redacted]— A: M-hm. Q: -- where it was in the morning and your father was on the computer in the living room watching pornography, right?

A: Yes. Q: And your evidence was that he got up from the computer, came towards you, and then touched your vagina, right? A: Yes. (Page 100, line 31 – 40) ... Q: So in the preliminary inquiry, you talked about an incident that I believe is the same incident. So this is again page 11 of the preliminary inquiry. A: Okay. Q: Lines 29, you told the Court: (as read) I remember one time in [redacted]. It was before school. I remember he had porn on the computer, and the couch was by the door. Similar to the incident you talked about earlier, right? A: Yes.

Q: And continuing on, you said: (as read) And I remember I was sitting on the door or sitting on the couch, sorry, by the door, and kind – and kind of was looking at me, like, in a sexual way. And then I just got – well, my pants were around my ankles, and he was looking at me while he is watching porn and looking at me. And that only lasted probably five minutes. Then I had to leave for school.

Right? A: Yes. If that’s what I said in that one, yeah. Q: You’re talking about the same incident, right? A: Yes. Q: But when you describe it under oath at the preliminary inquiry, you don’t talk about him touching your vagina at all, right? A: That’s right. (Page 101, line 7 -37). [ 27 ] I find the complainant’s testimony is internally contradictory and inconsistent regarding an essential element of the offence regarding this incident. 5. BL Incident: [ 28 ] In direct examination the complainant is asked the following: Q: And we’re going to talk about BL now. (Page 34, line 29) ...

Q: How often would you guys as a family go up to grandpa’s cabin in BL? A: My grandpa a lot would take just me and him, but there would be the occasional time, like a long weekend, that the whole family would go. Q: Okay. A: Or at times that it would be just my grandpa, a few of my grandpa’s friends, and just my dad. (Page 34, line 35 – 41). ... Q: So it wasn’t the whole family going up necessarily? A: No. Not all the time. Only once in a while. (Page 35, line 5, 6) ... Q: Okay. Now, did anything happen up there of this nature?

A: There is one incident that comes to mind, and that’s in the cookhouse on the three-level bunkbed. (Page 35, line 15 -17). ... Q: Who else if there? Just you? A: Just me and my dad, yeah. (Page 35, line 26, 27) ... Q: Okay. About how old were you? A: Seven. About seven. Q: So this is about 2007? A: Yeah. (Page 35, line 41 to Page 36, line 4). ... Q: Okay. What happened in this bunkbed incident? A: It was nighttime. Everyone was going to bed. I was on the very top bunk, and then he was on the bottom bunk, and – (Page 36, line 9 – 11). ... Q: Okay.

A: And I was on the very top, and I remember he had a flashlight on, and then he told me to come down. And he had a magazine with a bunch of people having sex on the magazine, like, intercourse pictures, pornography photos. And I remember he wanted me to give him a hand job, and I wasn’t doing it fast enough. And he got mad at me, so he just told me to go up top back to where I was, and yeah. (Page 36, line 19 – 24).

... Q: Did he touch you in that incident? A: I can’t remember, no. Q: Okay. But he directed you to— A: Do stuff. Q: --to masturbate him? A: Yeah. Q: Yes. Okay. How long did that last for? A: Five minutes, and then he told me to go up on my top bunk. (Page 36, line 29 – 39). ... [ 29 ] During cross examination, the complainant was asked as follows: Q: So you talked about this incident in your May 21st, 2019, statement, right? Do you remember that? A: Not really. Q: Okay. So do you have that May 21st, 2019, statement? A: Yes, I do. What page? Q: Just one moment. So this is page 18, lines 525 to 532.

When you described it to the police at that time, what you said was happening was that he was making you suck his dick while he was looking at porn, right? A: I said that the next – Q: So the way you described it on May 21st, 2019, is this was an incident of oral sex versus today you described the incident as being one of a hand job, as you described it, I believe? A: Yes. That’s what I remember now. Q: And so thinking back on it, you’re not sure which of those two things occurred, right? A: I’m not a hundred percent sure, no. Q: You also talked about it at the preliminary inquiry.

Do you remember testifying about this incident at the preliminary inquiry? A: Yes. Q: This is page 11, line 3 --- I guess starts at line 1. So you’re talking about the BL incident, and you talked about being in the cookhouse... (Page 98, line 31 to Page 99, line 15) ... Q: And then you said that he started touching you and that he wasn’t getting off. So he told you to go back to the bunkbed, right? A: Yes. Q: So you gave evidence today under oath, right? A: Yeah. Q: You gave evidence at the preliminary inquiry under oath, right? A: Yeah. Q: You gave a statement to Edmonton police officer, right? A: Yes.

Q: And you were doing your best to tell that Edmonton police officer the truth, right? A: Yes. Q: So you’ve given us a version where he was masturbating himself and touching you, right?

A: Yes. Q: You’ve given the version where he was having you manually pleasure him, and you can’t remember if he touched you, and you gave the version where he was having you perform oral sex on him, right? A: Yes. Q: So you basically— A: Sorry. Q: Sorry. Three different versions of what sex act was going on in that incident, right? A: Well, yes. (Page 99, line 20 to page 100, line 8) [ 30 ] The complainant’s testimony regarding this incident is internally inconsistent and self-contradictory with respect to an essential element of the offence.

As defense counsel notes, the complainant has provided three different versions of what sex act was going on in that incident. 6. Police attendance at the town home in 2019: [ 31 ] During cross examination the complainant is asked as follows: Q: Okay. My question is when you read that transcript, you recognized those were the answers you gave in court back in 2020, right? A: Yes. Q: Okay. And when you gave those answers back in 2020, you recognize that you were under oath to tell the truth, right?

A: Yes. (Page 59, lines 22 – 28) Q: So whichever date it occurs, there certainly was a day where A went to your father’s residence in [redacted] and you went along with A, right? A: Yes. Q: And the police arrived at some point- A: Yes. Q: - right? A: But he was already gone. He already packed his bags and left. Q: So are you saying you were present when your father left? A: I watched him go out the door, yes, after my auntie confronted him and freaked out at him... (Page 80, lines 6 – 18) Q: And the police arrived, and D was actually still there and spoke to the police, right?

A: Actually, yes, he was still there, but his bags were packed to leave. (Page 81, lines 14 – 16). Q: So when you said earlier that D left and packed his bags before the police got there, that obviously wasn’t true, right? A: Well, he did leave after he spoke to police. (Page 81, lines 29 – 31). [ 32 ] The complainant’s evidence changed within minutes regarding the exact same incident. This is another inconsistency in her testimony that has become concerning in the series of inconsistencies that I have noted.

I again consider the age of the complainant when this incident occurred, she was approximately 19 years old on this particular date. 7. The complainant’s evidence regarding telling her mother about the alleged sexual abuse: [ 33 ] The complainant is asked the following in cross examination: Q: So let’s go back to something you mentioned that – because I believe earlier in your evidence this morning you said that prior to this big blow up at your residence in 2019 that you had typed out a text and sent it to your mom and said you were sexually abused by your father, right? A: Yes. And then she called me. ....

Q: Okay. But you never told your mom – prior to this whole blow up with A, you never told your mom that your father sexually abused you at all, did you? A: No. (Page 82, lines 19 – 30).

[ 34 ] The complainant’s testimony changed within minutes during cross examination; from she texted her mom in 2019 to she never told her mom until the blow up with A at the family home in town. She provides testimony with two very different accounts and timeframes for when she told her mom about the alleged sexual abuse. This is another inconsistency in her testimony that has become concerning in the series of inconsistencies that I have noted.

CONCLUSION [ 35 ] I find the evidence of the complainant to be unreliable for the following reasons: she did not have the ability to clearly testify to significant details; she did not have the ability to recount or recall the events accurately when questioned. Her memory of what happened, the details as to location, the part of her body touched, and how the event happened was inconsistent and even self- contradictory under direct examination and, further, under cross examination. [ 36 ] I do not believe the evidence of the complainant.

Her evidence was not internally consistent as it changed between direct and cross examination. I find the complainant was not credible when I consider the totality of all the circumstances when assessing her credibility, specifically: her lack of accuracy and completeness regarding details, inconsistent statements, and self-contradictory testimony. The inconsistences were not minor or peripheral. The complainant gave different versions of events.

The contradictions are numerous and touch many aspects of the evidence on key issues. [ 37 ] I find the totality of inconsistencies leave me with a reasonable doubt about the reliability and credibility of the complainant’s evidence. The series of inconsistencies relate to the essential elements of the offences in question. [ 38 ] For the reasons above, I do not believe the complainant.

I do not find her trustworthy or believable. [ 39 ] I must consider whether the Crown has met its burden. [ 40 ] The only evidence the Crown has called is neither reliable nor credible; thus, I give no weight to the complainant’s evidence, and I am left with a reasonable doubt as to the accused’s guilt. [ 41 ] The accused gave evidence, but given my analysis above regarding the complainant’s evidence, I find I do not need to discuss this further. [ 42 ] Therefore, I must find the accused not guilty, and accordingly I acquit the accused on all charges. [ 43 ] You are free to go Mr. C.

Heard on the 26 th day of September, 2022 and the 16 th day of January, 2023. Dated at the City of Edmonton, Alberta this 17 th day of February, 2023. C.L. Arcand-Kootenay J.C.K.B.A. Appearances: Tyler Maclean for the Crown Kristofer Advent for the Accused