R v WG, 2024 ABKB 90

Court of King’s Bench of Alberta Citation: R v WG, 2024 ABKB 90 Date: 20240215 Docket: 191109792Q1 Registry: Wetaskiwin Between: His Majesty the King Crown - and - WG Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Decisio n of the Honourable Justice Graesser _______________________________________________________

Introduction [ 1 ] WG is charged that: 1. On or about the 3rd day of September, 2019, he did knowingly utter, convey or cause AB to receive a threat to cause death or bodily harm to 3 kids, contrary to

section 264.1(1)(

A) of the Criminal Code of Canada ; 2. On or about the 3 rd day of September, 2019, he did operate a motor vehicle or vessel while being pursued by a peace officer, and did, without reasonable excuse, fail to stop as soon as it was reasonable in the circumstances, contrary to

section 320.17 of the Criminal Code of Canada ; and 3. On or about the 3 rd day of September, 2019, did unlawfully commit a sexual assault upon AB, contrary to

section 271 of the Criminal Code of Canada . [ 2 ] The trial was originally set to be a jury trial. WG ended up self-representing. Counsel had been appointed to cross-examine the Complainant. Before the trial commenced, WG re-elected to judge alone. At the commencement of the trial, WG advised the Court that he did not intend to cross-examine any Crown witnesses, and that he did not want appointed counsel cross-examining the Complainant. [ 3 ] There were some delays with the commencement of the trial, during which WG spoke to appointed counsel at length.

Counsel ultimately advised that he accepted WG’s instructions and that he would accordingly not be cross-examining the Complainant, or any of the other Crown witnesses. [ 4 ] The Crown called five witnesses: two RCMP officers, the Complainant, the Complainant’s mother, and the nurse who examined the Complainant following her complaint to the RCMP. None of these witnesses were cross-examined by or on behalf of WG at his insistence.

Constable Ott’s testimony included playing his RCMP vehicle’s dash camera, which recorded the car chase of WG over the better part of an hour before WG was stopped and arrested. [ 5 ] At the conclusion of the Crown’s case, WG elected to call no evidence and indicated that he intended to bring a Charter application as a result of alleged violations of his

section 11(

b) rights. The trial was adjourned to allow WG to bring his application and file and serve the necessary materials on the Crown. [ 6 ] Following receipt of written submissions, I dismissed WG’s Charter application at 2023 ABKB 613 and directed that the matter be rescheduled to complete the trial. On the recommencement date, WG appeared but was not prepared to argue the matter, so the trial was again adjourned. I directed the parties to file written arguments and advised that I would attempt to make a decision on those materials without requiring oral argument. I have reviewed the submissions from Mr.

Rudiak for the Crown and by WG, and it is not necessary for me to have written argument. [ 7 ] WG’s written argument suggests no defence to the flight from police and the driving charges. He appears to be suggesting in his submissions that he had to take the car otherwise he would not see it again. If it had been left at the Complainant’s residence, he feared that she would take it. He speaks briefly of another vehicle being found abandoned and damaged a month or so after the charges were laid. I assume he wants me to infer that it was the Complainant who took that vehicle.

Fear that the Complainant might take his vehicle provides absolutely no defence to him fleeing from the RCMP and driving in the fashion Constable Ott testified to. As WG says himself, the evidence on the flight and driving charges “speaks for itself”. [ 8 ] The remainder of his submissions are largely an attack on the Complainant. He says that he did not testify and called no defence because she threatened him that if he did not fire his lawyer and if he tried to challenge her evidence, he would never see his children again. He and the Complainant have three children together.

He says they separated in 2018 before the events leading to the charges took place, and at the time these events occurred they were involved in unhappy court proceedings involving custody, access and property issues. [ 9 ] The only thing WG says in his argument about the alleged sexual assault is that sexual activity between them that evening was consensual, and that it was the Complainant who initiated sexual activity with him. [ 10 ] As for the alleged threat, he says that the Complainant was not afraid of him and should not have taken anything he said seriously.

He points out that about six months after the charges were laid against him, she was attempting to arrange family events that included him. [ 11 ] Essentially, he submits that this is a domestic matter that should not be in the criminal courts. [ 12 ] He referenced the materials he filed on his

section 11(

b) Charter arguments relating to his allegation that the Complainant had assaulted him, but that was only in the context of his comments on the threat charge that the Complainant had no reason to be afraid of him or fear that he would carry out any threats. This referenced the Complainant’s conduct some six months after the events that led to the charges against him. [ 13 ] WG’s submissions on the threat suggest that he has focused on long-term threats, rather than threats made in the heat of an argument or dispute.

Again, these are areas that might have led to cross-examination of the Complainant and her reaction to any threats that may have been made against her. Raising the notion that the Complainant did not or should not have treated any threats seriously does not assist WG at this stage. [ 14 ] In any event, none of these things are in evidence in any admissible way. This is the sort of information that would have to come out through cross-examination of the Complainant and the other witnesses, from witnesses called by him in his defence, and from

his own testimony. I mention them and deal with them only in the context of R v WD, (SCC), [1991] 1 SCR 742. I amdoubtful that WD has any application to unsworn, post trial arguments by the accused, but I reference it and consider it to make sure Ihave not reversed any onuses or failed to recognize the importance of the presumption of innocence. [15] After-the-fact conduct by the Complainant is not a defence to any of the charges; rather it could be an attack on the credibilityof the Complainant.

That might cause the trier of fact to have doubts about the truthfulness or reliability of her evidence. [16] As a result, WG’s unsworn and post-trial submissions are of no assistance to him at this stage of the proceedings. At best,they only provide an explanation for why he proceeded without counsel, why he did not cross-examine any witnesses, and why he didnot testify. They do not provide any defence to what his is charged with. Even if I accepted the truth of these statements, they do notprovide a defence to any of the charges against him.

Nor could they raise any reasonable doubt as to his guilt on the charges. An accusedperson cannot skip the cross-examination and testimonial parts of the trial and ask the Court to rely on unsworn self-serving factualinformation provided in a fashion that cannot be challenged by the Crown. Evidence at trial [17] Constable Jacob Ott was the first witness. He provided the basic narrative. After identifying WG as the accused, he testifiedthat he and Constable Rains met the Complainant at her mother’s residence.

After taking a statement from the Complainant atapproximately 3 am on September 3, 2019, Constable Ott believed he had reasonable and probable grounds to arrest WG. He was toldWG was likely at his nearby residence, the residence shared with the Complainant. [18] Constable Ott and Constable Rains drove to what they believed to be WG’s residence. They had been told WG was a soundsleeper and they should knock loudly, which they did. There was no response to their knocking, but they heard loud bangs.

Constable Otttestified that he thought someone was trying to break into a house close by. [19] The Complainant then telephoned them to say that WG was trying to break into her mothers’ house. The officers immediatelywent back to the mother’s house but did not find WG there. [20] The Complainant’s mother told them that WG was in the back alley, and Constable Ott then heard a truck door slam. Theywent back to their police vehicle and saw a truck driving away.

It “blew” a nearby stop sign, and Constable Ott initiated pursuit. [21] He said the vehicle was followed to Bashaw and Highway 21, where it blew through another stop sign. Assisting police theretried to use a tire device as a sort of roadblock, but WG drove his vehicle into ditch to avoid the tire device. WG then drove to Highway12 where he ran through another stop sign.

WG continued driving until he was stopped near Blackfalds, where two other RCMPmembers successfully used a tire deflation device to slow and then stop the vehicle. [22] WG was then arrested and was compliant with police demands after that time. [23] Corporal Russell testified. She dealt with the Complainant, originally at the Complainant’s mother’s home. She took theComplainant to Red Deer Hospital for treatment and assessment.

She also took photographs of the Complainant, which show numerousinjuries, including broken blood vessels in her left eye, broken blood vessel on her cheek and the side of her head, broken blood vesselson her right eyebrow, and broken blood vessels on her neck. These injuries can be clearly seen in the photographs marked as exhibits. [24] The Complainant testified. For the purposes of this written decision, it is not necessary to go into any details as to what theComplainant says WG did to her sexually on September 3, 2019.

Since she was not cross-examined at all, and there was no contraryevidence put forward, I only need to consider issues of credibility and reliability in her testimony. No useful purpose is served by gettinginto specifics of the sexual acts. [25] At the outset of her testimony, the Complainant summarized what happened. She said she was in the bedroom, on her phone.WG came into her room and told her she was “breathing funny”. He then started to choke her. She could only get a few words out andtold him she would do anything to get him to stop. Sexual assault occurred.

She then ran to her mother’s house. [26] More details were fleshed out in her direct evidence. She testified that WG was still living in the home, although she said they“weren’t really sleeping together”. She said that just before the events giving rise to this prosecution, she was in their bedroom and WGwas in the living room. The children were sleeping in their rooms. [27] She testified that WG came into the room, approached her and started choking her by the neck. While he was choking her, shefought back and believes she kicked him and grabbed at his side.

She also thinks she bit his hand when he put it over her mouth. She saidshe was pushing him trying to get him off her and was reaching for his hands. [28] When asked what was going through her mind at this time, she said she thought she was going to die. She thought of theirkids. She also thought if she told him she loved him enough, he would stop. The Complainant testified she was able to get “stop”, “sheloved him” and “kids” out, and then said, “I’ll do anything.” [29] I need not describe the sexual activity that took place after that. At some stage, WG used handcuffs to further restrain theComplainant.

The Complainant put up no further resistance. [30] The Complainant recalled that at one stage, after the choking and some of the sexual activity but while she was still inhandcuffs, they went outside on the deck for a cigarette. WG told her that if she tried anything to get away, he would “kill the kids, everyone of them”. [31] More sexual activity occurred, and after showering they went to bed together. As soon as WG fell asleep, the Complainant leftthe house and ran to her mother’s house across the back lane. There, she immediately phoned the police.

[ 32 ] The Complainant described her injuries at the hands of WG as being broken blood vessels on her face and in her eyes, bruises on her neck, cuts inside her mouth, bruises on her body, and broken blood vessels on her body. [ 33 ] The Complainant’s mother then testified. She confirmed the Complainant’s narrative about arriving in the early hours of the morning, telling her what happened to her, and then phoning the police.

She described what happened after the police arrived, including WG banging on her door after the police had interviewed her daughter and had gone to look for him. [ 34 ] The final witness was the SART (sexual assault response team) nurse from Red Deer Hospital. She described her examination of the Complainant on September 3, 2019 and her report was entered as an exhibit. She noted a number of injuries to the Complainant’s neck and face, consistent with strangulation, as well as bruising and swelling on the Complainant’s face and numerous other areas of the body.

She was careful to distinguish between old bruising and “fresh” injuries. [ 35 ] The nurse’s description of the injuries she observed were entirely consistent with what the Complainant testified WG had done to her. Analysis [ 36 ] Because of the position taken by WG, this is not a complicated matter. There is no conflicting evidence. There was no cross- examination of any witness by or for WG. He did not testify himself, and he called no witnesses. The only defence specifically raised by WG was his contention that his Charter rights had been violated by the passage of time.

Those arguments do not themselves amount to a defence; rather they are circumstances that may give rise to a stay of charges or other remedies under the Charter if a Charter breach is found. Sexual assault [ 37 ] There are three elements to this offence that boil down to sexual touching without consent. I need only reference the cases cited by Mr. Rudiak.

He focused on R v Barton , 2019 SCC 33 at paras 86-90 . [ 38 ] Here, subject to accepting the Complainant’s evidence and being satisfied beyond a reasonable doubt that WG did the things to her she testified she did, there is no need to deal with whether or not the Complainant was touched in a sexual way. The live issues would be consent, and whether WG had an honest but mistaken belief in consent. [ 39 ] At para 86 of Barton , the Court stated: [86] One of the ways in which an accused may respond to a charge of sexual assault is to rely on the defence of honest but mistaken belief in communicated consent.

To lay the foundation for the analysis that follows, it will first be useful to briefly review several key principles relating to this defence, namely: (

a) the role consent plays in the sexual assault analysis, (

b) the necessity of having a belief in communicated consent in order to raise the relevant defence, (

c) mistakes of law, and (

d) the reasonable steps requirement... [ 40 ] At para 87, the Court said: A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea . A person commits the actus reus of sexual assault “if he touches another person in a sexual way without her consent” ...

The mens rea consists of the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”... [ 41 ] “Consent” is defined in para 88 as “the voluntary agreement of the complainant to engage in the sexual activity in question”.

That means that it is “the conscious agreement of the complainant to engage in every sexual act in a particular encounter”... and it must be freely given... [ 42 ] Consent must exist “at the time the sexual activity in question occurs” and “it can be revoked at any time”. [ 43 ] Para 89 makes it clear that “consent” means “that the complainant in her mind wanted the sexual touching to take place” with the focus “squarely on the complainant’s state of mind”.

The accused’s “perception of that state of mind is irrelevant. [ 44 ] Specifically, the Court stated that “if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple”. [ 45 ] Para 90 deals with the potential defence of honest but mistaken belief in consent.

The Court held that defence requires that the complainant’s consent had to be communicated to the accused, namely that “the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused”. [ 46 ] Ultimately, the question is “whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions”. At para 101, the Court referenced

section 273.2 of the Criminal Code , which provides that the defence of honest but mistaken belief in consent is not available unless the accused too reasonable steps “in the circumstances know to the accused at the time” to ascertain that the complainant was consenting. [ 47 ] As noted above, WG did not testify and no admissible evidence or information was put forward by him or on his behalf that requires me to consider the first two steps of WD . My remaining task is to determine if the evidence I do accept satisfies me beyond a reasonable doubt that WG committed the offences he is charged with.

[ 48 ] The significant evidence on the alleged sexual assault and the alleged threat all comes from the Complainant. Despite the absence of cross-examination and any other or competing evidence, I still have to assess her evidence for credibility and reliability. The Complainant testified in a straightforward matter. She was responsive to the Crown’s questions. She was emotional in her testimony. That was not surprising as she was testifying about painful things that had happened to her. By “painful” I mean physical and emotional.

She testified in a matter-of-fact way and did not appear to embellish or exaggerate anything as best as I could tell from her unchallenged testimony. [ 49 ] I accept her evidence and find beyond a reasonable doubt that she was touched in a sexual way by WG without her consent. Her unchallenged and unshaken testimony was that she did not consent. She did not want any of the sexual acts performed on her by WG to take place. I accept that. [ 50 ] She acknowledged saying to WG that she would “do anything”. She explained that as being her way or strategy of not getting hurt any further.

She had already been choked against her will. She was fearful for her life. Her testimony was that WG had never acted this way before. [ 51 ] As held in Barton , consent must be voluntary consent.

Consent cannot be coerced. [ 52 ] Hearing someone say “I’ll do anything” is not consent when those words are spoken to stop an attacker from choking them by the neck. [ 53 ] I will simply say that all of the sexual activity that followed the choking was not consented to. [ 54 ] As for the potential defence of honest but mistaken belief in consent, WG could not have had any “honest but mistaken belief” that the Complainant was consenting to anything on the Complainant’s evidence. She was clearly in life-saving mode when she acquiesced to the sexual acts he forced on her.

It is clear from her evidence that WG was completely oblivious to the Complainant’s wishes. He did what he wanted and she only went along with it out of fear. [ 55 ] An honest but mistaken belief in consent requires that the accused take reasonable steps to ascertain that the Complainant was consenting.

There is nothing in the Complainant’s testimony or any of the other evidence before me that could possibly be interpreted as a “reasonable step” by WB to ascertain the Complainant’s consent. [ 56 ] In the circumstances here, it is unfathomable that “I’ll do anything” could be interpreted as consent to sexual activity at all, let alone to violent sexual activity that might lead to the types of injuries suffered by the Complainant. [ 57 ] No possible spectre of an honest but mistaken belief in consent is raised on the facts of this case. [ 58 ] I find WG guilty of sexual assault, as charged. Uttering Threats [ 59 ]

Section 264.1 of the Criminal Code states: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; (

b) to burn, destroy or damage real or personal property; or (

c) to kill, poison or injure an animal or bird that is the property of any person. [ 60 ] I accept the Complainant’s evidence that while she and WG were on the deck of their house, he said to her that if she tried to do anything or leave, he would “kill the kids, all of them”. That is in the context of him having choked or strangled the Complainant into submission, some sexual assault of her, and restraining her by handcuffs. They sere having a cigarette together on the deck during this ongoing sexual assault.

The Complainant wanted to be released from the handcuffs. [ 61 ] The Complainant testified that she was frightened. She testified that she had never seen WG like this and did not know what he was capable of. [ 62 ] It is clear from the Complainant’s unchallenged and uncontradicted testimony that this threat was made by WG. It is also clear that the Complainant did not understand this or take this to be a joke. [ 63 ] The elements of uttering threats do not require the Crown to prove that the person to whom the threats were uttered believed the threats would be carried through with.

It is enough that threats to “cause death or bodily harm to any person” were made. Here, threats of causing death to identified persons, the Complainant’s children, were made. [ 64 ] As discussed above, I find the Complainant to be a credible and reliable witness. As such, I am satisfied beyond a reasonable doubt that WG committed this offence, and I find him guilty as charged. Criminal flight [ 65 ]

Section 320.17 of the Criminal Code states: 320.17 Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails,

without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances. [ 66 ] As for the criminal flight which WG is charged with, the case against him is fully proven by the video recording of the “chase” that followed after he left his and the Complainant’s residence in his vehicle. [ 67 ] WG could have had no possible doubt that he was being followed and then pursued by police officers. Once he blew a stop sign, Constable Ott activated his flashers and followed WG for many kilometers over the better part of an hour.

There can be no doubt that the flashers would have been obvious to anyone travelling in any direction on the highways involved, including WG. [ 68 ] After the flashers were activated by Constable Ott, WG committed numerous driving offences, he evaded an obvious police attempt to stop him in Bashaw, and continued his flight with Constable Ott pursuing him until he finally stopped near Blackfalds. [ 69 ] WG was clearly identified by Constable Ott as the driver of the vehicle he followed and arrested near Blackfalds. It is clear, beyond a reasonable doubt that WG was operating the vehicle.

It is clear beyond a reasonable doubt that he was being pursued by a peace officer. The only excuse for not stopping, not in evidence but in argument, was that WG feared that if he did not take his car away from his residence, the Complainant would take it and he would not see it again. Assuming for the sake of argument that this is something I can consider as an “excuse”, it is ridiculous to think that leading police on a lengthy and dangerous chase was in any way reasonable.

If that had been a concern, all WG had to do was to stop and the vehicle would have been impounded. [ 70 ] In any event, there is no reasonable excuse in the evidence, and even if there had been, the “as soon as possible” component was exceeded by a very wide margin. [ 71 ] I have absolutely no doubt that WG is guilty of this offence, and I find him guilty as charged. Conclusion [ 72 ] I have found WG guilty of the three offences he is charged with: sexual assault, uttering threats, and flight from police.

I direct the parties to appear at arraignments in the Court of King’s Bench in Wetaskiwin at the next available date to

schedule a date for sentencing. Heard by way of written submissions. Dated at the City of Wetaskiwin, Alberta this 15 th day of February, 2024. Robert A. Graesser J.C.K.B.A. Appearances: Jeff Rudiak, K.C. for the Crown WG (Self-Represented) for the Accused