R v CER, 2022 ABKB 636

Court of King’s Bench of Alberta Citation: R v CER , 2022 ABKB 636 Date: 20220921 Docket: 191343656Q1 Registry: Red Deer Between: His Majesty the King - and - C.E.R. 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 By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Reasons for Judgment of the Honourable Justice Eleanor J. Funk _______________________________________________________ Introduction [ 1 ] The accused is charged with five sexual offences involving a complainant who is now 14 years old.

The events are alleged to have taken place over two separate time periods. Three of the charges are alleged to have taken place sometime during 2017, when the complainant was nine or 10 years old. The remaining two charges are alleged to have taken place sometime during September of 2019,

when the complainant was 11 years old. [2] The complainant says the accused started touching her inappropriately when she was eight or nine years old, in her family’shome in Rimbey. These are the events that are alleged to have taken place in 2017. She says the accused continued to touch herinappropriately after her family moved to Sylvan Lake.

These are the events that are alleged to have taken place in September of 2019.She disclosed these allegations to her mother in late September of 2019 and gave her statement to police shortly after. [3] At the Rimbey house, the complainant says the accused showed her pornography on his phone; touched and licked her chest;groped and kissed her; and made her touch his ‘private parts’. For this, he is charged with sexual assault, sexual interference, andinvitation to sexual touching, contrary to CC 271, 151, and 152.

Later, at the Sylvan Lake house, the complainant says the accusedtouched and kissed her ‘like grown ups kiss’. For these allegations, he is charged with sexual assault and sexual interference, contrary toCC 271 and 151. The accused testified in his defence and denied all allegations. [4] There is no doubt that the complainant’s version of events, if proven, would satisfy the elements of each of the allegedoffences. [5] Since there is conflicting Crown and Defence evidence in relation to these allegations, the real issue before me comes downto the credibility and reliability of that evidence.

And whether, based on all the evidence, the Crown has proven these allegations beyonda reasonable doubt. Relevant Law Standard of proof beyond a reasonable doubt [6] In assessing the evidence before me, I must keep a number of legal principles in mind. First, there is no presumption that thecomplainant, or any witness, is telling the truth. The only presumption that operates here is that the accused is presumed innocent andthat the Crown bears the burden of proving his guilt, beyond a reasonable doubt.

That burden never shifts away from the Crown: R vKHT, 2017 ABQB 735 at para 6; R v Lifchus, (SCC), [1997] 3 SCR 320 at para 27. [7] The principle of proof beyond a reasonable doubt has deep roots in our system of criminal justice. It is inextricably linked tothe presumption of innocence and is one of our principal safeguards against convicting the innocent.

While the Crown is not required toprove the accused’s guilt to an absolute certainty, the standard of proof beyond a reasonable doubt lays closer to that standard than it doesto the civil standard of balance of probabilities: Lifchus, at paras 36-38; R v Starr, 2000 SCC 40 at para 96. [8] The Supreme Court of Canada has explained that a reasonable doubt is not one that is imaginary or frivolous. It is not basedon sympathy or prejudice. Rather, a reasonable doubt is one that is based in reason and common sense. It is derived from the evidence, orabsence of evidence.

Lifchus, paras 13,14, 27, 31,32, 36. [9] Even if I believe that the accused is probably guilty or likely guilty, that is not enough to enter a conviction. In that case, hewould be entitled to the benefit of the doubt as the Crown will have failed to meet its burden of proving his guilt beyond a reasonabledoubt. Only if, based on the evidence, I am sure of the accused’s guilt beyond a reasonable doubt, should I enter a conviction. Lifchus atpara 39.

Assessments of credibility and the standard of proof beyond a reasonable doubt [10] The standard of proof beyond a reasonable doubt also applies to my assessments of credibility. [11] Credibility relates to the veracity or truthfulness of a witness’ evidence. Reliability has to do with the accuracy of thatevidence. [12] When I consider the credibility of a witness’ evidence, I am to consider the evidence as a whole, and not weigh individualpieces of evidence in isolation.

When I assess the credibility of any witness, I may employ my common sense and life experiences,combined with logic, and in consideration of the general picture revealed on consideration of the whole of the case. R v Beland, [1987]28 CR 397 at para 20. [13] Reliability, as stated, has to do with the accuracy of the witness’ evidence. It engages considerations of the witness’ ability toobserve, recall and recount the events on which they are giving evidence.

R v HC, 2009 ONCA 56. [14] The Supreme Court of Canada, in R v W(D), (SCC), [1991] 1 SCR 742, articulated a test to be applied inassessing credibility against the proof beyond a reasonable doubt standard. [15] The Alberta Court of Appeal has further articulated this test in R v Ryon, 2019 ABCA 36 and R v Achuil, 2019 ABCA 299.First, if I believe the accused’s evidence denying his guilt (or any other exculpatory evidence), I must acquit.

Even if I don’t believe theaccused’s exculpatory evidence but am left with a reasonable doubt that it may be true, then I must acquit. [16] Next, while I should try to resolve the conflicting evidence that bears on the accused’s guilt or innocence, this trial is not acredibility contest that requires me to decide if the complainant’s version or the accused’s version is true.

If, after careful considerationof all the evidence, I am unable to decide which of them to believe, then I must acquit. [17] Even if I completely reject the accused’s version as true, I must not simply assume that the complainant’s version must betrue. Instead, I must carefully assess the evidence that I do believe and decide whether that evidence persuades me beyond a reasonabledoubt of the accused’s guilt. Ryon, at para 51; Achuil, at paras 17-18. [18] In this assessment, I may believe some, none, or all of the testimony of any witness, including that of the accused. R v S (JH),

2008 SCC 30 at para 10. [19] I must apply this standard and this analysis to each of the five charges the accused is facing. Prohibited myths and stereotypes [20] When I apply these principles, along with my common sense, to the complainant’s evidence, I must not allow any prohibitedmyths or reasoning enter my decision-making process. I am not to draw any negative inferences from the fact that the complainant didnot apparently resist the accused, nor did she change her behaviour when she was around him.

I am not to draw any negative inferencesfrom the fact that she did not disclose these alleged acts for more than two years. The law recognizes that victims of sexual assault mayrespond in a number of different ways, and I am not to base my findings of credibility and reliability of the complainant’s evidence onthese factors. KHT at para 11; R v Seaboyer, [1992] 2 SCR 577 at paras 147-152; R v CMG, 2016 ABQB 368 at para 63-81; R v ADG,2015 ABCA 470 at para 33.

Special considerations applied to the testimony of children [21] Here, the complainant was approximately nine to 11 years old at the time of these alleged events. She was 14 years old whenshe testified before me in this trial. In my assessment of the credibility of her evidence, I must keep in mind that the evidence of childwitnesses is entitled to special consideration from that of adults. Children experience and remember the world differently than adults do.Their perceptions of times and places is not the same as it is with adults.

Their evidence may lack details in relation to time and placethat we would expect from an adult’s evidence. R v W(R), (SCC), [1992] 2 SCR 122 at paras 25-26. [22] While I am to approach the complainant’s evidence with some leniency, because of her age, this does not mean that herevidence escapes judicial scrutiny. I am still to consider the complainant’s evidence considering possible internal and externalinconsistencies. I must assess her evidence, along with all the evidence before me. And I must consider the possibility and plausibility ofher evidence.

KHT at para 16. [23] Nor does the special consideration I am to give to the complainant’s evidence mean that the Crown is relieved of its burden ofproving the accused’s guilt beyond a reasonable doubt. At the end of my analysis, I can enter convictions on these matters only if I amconvinced of his guilt beyond a reasonable doubt. Issues raised by the Defence [24] In its submissions, the Defence raises several evidentiary issues and arguments that I will address first before moving on to myanalysis of the evidence.

The use of the accused’s statement to police [25] The Defence argues the accused’s testimony in this trial should be believed because his denials have been consistentthroughout, including through what the Defence calls a “prolonged and vigorous interrogation by the police”. The Defence refers in itssubmissions to specific portions of that police interview, citing page and line numbers from the transcript taken from it. [26] The Crown did not tender the accused’s statement to police as part of its evidence in this trial. Instead, it used portions of thatinterview in its cross examination of the accused.

The transcript of that statement was not adduced and is not evidence in this trial. Icannot now rely on the contents of a statement that was not put before me as evidence in this trial. [27] Further, the Defence argues that I should believe the accused because he denied these allegations to the police and continuedto deny them in this trial. In other words, the Defence is asking me to use the accused’s prior consistent statement to the police to bolsterhis credibility in this trial. [28] It is well established that prior consistent statements are generally inadmissible.

These types of statements are viewed aslacking in probative value and being self serving. There are some exceptions to this rule, such as when prior consistent statements areused to rebut a suggestion of recent fabrication. They are not admissible for the purpose of bolstering the credibility of the accused.Exclusion of prior consistent statements of an accused is viewed as a product of the rule against oath-helping or adducing evidence solelyfor the purpose of bolstering credibility.

R v Stirling, 2008 SCC 10 at para 5; R v Crawford, (SCC), [1995] 1 SCR 858at para 46; R v Edgar, 2010 ONCA 529 at para 34. [29] Even if the accused’s statement to police were evidence in this trial, it would not be admissible for the purpose the Defencenow seeks, that being to bolster the accused’s credibility. It is this type of oath-helping that the rule against admitting prior consistentstatements is intended to prevent.

The use of the complainant’s evidence from the preliminary hearing [30] The Defence argues there are inconsistencies in the complainant’s evidence given in this trial as compared to her evidencetaken in the preliminary hearing. [31] The Defence did not question the complainant in relation to the evidence she gave at the preliminary hearing. That testimonyis not evidence in this trial. I cannot now make assessments of credibility based on the complainant’s testimony at the preliminaryhearing when that testimony was not put before me as evidence in this trial.

Reliance on myths and stereotypes [32] Both the complainant and her mother testified that the mother often spoke with the complainant about sexual matters andencouraged the complainant to let the mother know if anyone had inappropriately touched her. Notwithstanding this close mother-

daughter relationship and these open conversations, the complainant first told her mom of these alleged assaults in September of 2019, about two years after they are alleged to have started. [ 33 ] The Defence now argues this delay in disclosing these events to the mother is inconsistent with their close relationship and should give rise to suspicions in relation to the complainant’s credibility.

In other words, the Defence is assuming the complainant should have disclosed these allegations to her mother sooner, because of their close mother – daughter relationship. [ 34 ] Elsewhere, the Defence argues the complainant is not credible because there is no evidence of her efforts to try to stop the accused from touching her and no evidence of her expressing any sense of revulsion in relation to the accused touching her chest.

In other words, the Defence seeks to impeach the complainant’s credibility because the complainant did not exhibit expected predictive behaviour. [ 35 ] These arguments engage the types of myths and stereotypes that I must avoid. I may draw no negative inferences about the complainant’s credibility based on the timing of her disclosure of these allegations. The importance of delayed disclosure will vary depending on the circumstances of each particular complainant. Delayed disclosure in cases where child witnesses make allegations is not a proper form of impeachment.

R v ADG, 2015 ABCA 149 at para 32 ; R v ARD, 2017 ABCA 237 at para 64 ; KHT at para 77. [ 36 ] I am also to draw no negative inferences about the complainant’s credibility based on assumptions about how she was supposed to react, including the Defence assumption here that she should have tried to stop the accused and that she should have felt a certain way about the accused touching her. [ 37 ] There is no inviolable rule about how people who are victims of trauma like sexual assault will behave.

A failure to demonstrate avoidant behavior or a change in behavior must not be the subject of any presumptive adverse inference based on now rejected stereotypical assumptions of how people, and particularly children, react to sexual abuse. It is neither logical nor a matter of common sense to expect a child complainant to behave in any particular manner. ARD at paras 42-43 ; citing DD at para 63-65.

The role of cross examination in the search for the truth [ 38 ] The Defence argues there are several inconsistencies and discrepancies in the complainant’s evidence that should now operate against her in my assessment of her credibility.

In places, the Defence alleges the Crown failed to adduce evidence to explain these discrepancies. [ 39 ] First, the Defence alleges the Crown failed to adduce evidence to explain why the complainant waited two years to tell her mom about this alleged abuse. [ 40 ] In cross examination, the Defence asked the complainant if she told her brother about the first alleged event, the complainant answered that she did not tell anyone. Elsewhere in cross examination, the Defence asked the complainant if she talked to anyone about the second alleged incident, she answered “no”.

Later, the Defence asked if the complainant ever told anyone, she answered that she “never talked to anyone”.

The Defence confirmed with the complainant that her mother talked to her about similar experiences of abuse that the mother experienced as a child. [ 41 ] In each of these instances, the Defence did not challenge the complainant on any of her answers and did not ask her why she waited two years to tell her mom about this alleged abuse. [ 42 ] Next, the Defence states the complainant testified that she both purposefully tried to avoid the accused and that she continued to accompany him to the basement, knowing she would be alone with him there.

It argues the Crown failed to adduce evidence to explain this discrepancy in the complainant’s evidence and that I should now draw a negative inference about her credibility because of this discrepancy. [ 43 ] I have listened to the recording taken from the complainant’s cross examination. From it, I note the Defence asked the complainant if she started to avoid the accused. She answered that she was “not completely avoiding him but not purposefully being with him”. [ 44 ] The Defence asked the complainant if she was uncomfortable with the accused.

She answered that the accused was a friend and that she used to be comfortable with him, but sometimes she was not comfortable “because of what happened”. [ 45 ] The Defence asked the complainant if she did not want to be alone with the accused. She said, “the majority of the time, yes”. [ 46 ] In cross examination, the complainant said there were a couple of times that the accused asked her to accompany him to the basement.

She agreed that “it could be possible” that she sometimes followed him into the basement. [ 47 ] At no time did the Defence challenge the complainant’s answers in any way and did not put to the complainant any of the inconsistencies and discrepancies it now argues should be used to make adverse findings about her credibility. [ 48 ] Finally, the Defence argues that the complainant testified “for the first time in cross examination” that the accused told her not to tell anyone about this alleged abuse and that her evidence “was recounted only vaguely”, leaving the Court without any ability to ascertain when the accused may have said this or the circumstances in which he may have said this. [ 49 ] I note in the complainant’s statement to police, which is also her evidence in chief in this trial, she said that the accused told her not to say anything and that she didn’t because she “was younger then”. [ 50 ] In cross examination, the Defence asked the complainant if the accused said anything to her.

She answered when they were alone again, he told her not to tell anyone. The Defence asked if she was afraid of the accused. She answered that he was an “authority figure” and that she was not afraid of him physically hurting her but was afraid of what he could do to her.

[51] The Defence asked no further questions and did not challenge the complainant on any of these answers. It did not ask thecomplainant what she meant about being afraid of what the accused might do to her. [52] When a witness testifies before the Court, there are two fundamental guarantees. First, the witness testifies under a promise totell the truth that binds the conscious. Second, that testimony is subject to cross examination to test its veracity and accuracy.

Our systemof justice regards cross examination as “the faithful friend in the pursuit of justice and an indispensable ally in the search for the truth”. Rv Monkman, 2021 ABQB 648 at para 32, citing R v Lyttle, 2004 SCC 5 at para 1. [53] The Supreme Court of Canada has explained why cross examination plays such an important role in the adversarial process,especially in criminal trials. Cross examination is of essential importance in determining whether a witness is credible. Even with themost honest witness, cross examination can provide the means to explore the frailties of their testimony.

Its importance cannot be denied.It is the ultimate means of demonstrating truth and testing veracity. Lyttle at para 42; citing R v Osolin, (SCC), [1993] 4SCR 595 at p 663. [54] Here, the Defence alleges inconsistencies in the complainant’s evidence and argues her evidence is not credible because ofthese inconsistencies. On each alleged discrepancy, the Defence did not test the veracity of the complainant’s evidence by challengingher evidence through cross examination.

Instead, it now criticizes the Crown for not explaining these inconsistencies. [55] In my view, it was the role of Defence, to test the veracity and accuracy of the complainant’s evidence through crossexamination. It did not do so. In the end, I am left with the complainant’s untested and unchallenged evidence.

The Crown’s burden of proof [56] The Defence argues the Crown failed to adduce any evidence of why the accused allegedly started to abuse the complainantwhen he did nor any evidence of why the accused is alleged to have abused only the complainant, but not her siblings. [57] Like corroborative evidence, there is no legal requirement or burden on the Crown to demonstrate why any allegations ofsexual abuse began when they did or why a particular complainant was targeted for such abuse. Some sexual assaults are crimes ofopportunity and others of premeditation.

The law has long recognized that sexual assaults against young children are generally acts thatoccur in the privacy of one’s home and do not take place in front of spouses, parents, family, or friends. They are notoriously difficult todetect.

F.H. v McDougall, 2008 SCC 53 at para 80-81; R v Campbell-Ball, 2019 SKCA 41 at para 41; Director v NM, WM and JM,TT, 2012 BCPC 114 at para 30. [58] To my mind, placing a burden on the Crown to adduce evidence explaining why these alleged events happened when theydid, or why this complainant was targeted and not her siblings, would elevate the Crown’s evidentiary burden above what the lawrequires. [59] My task here is determine whether these alleged events in fact occurred. I am to do so based on my assessment of thecomplainant’s allegations and the accused’s denials, along with other available evidence.

As difficult as that task may be, there is noadditional legal requirement for the Crown to adduce evidence of why this abuse may have started nor why the accused may have chosenthe complainant and not her siblings. [60] I now turn to my analysis of the evidence using the principles articulated by the Supreme Court in WD and further explainedby our Court of Appeal in Ryon. Background [61] There is no dispute that the accused and the complainant’s mother had been very close friends for many years – since longbefore the complainant was born.

At times, over the years, the accused lived with the complainant’s mother, including while thecomplainant’s mother and father were still together. The father says the closeness between the mother and the accused is part of thereason that he separated from the mother in 2012. The mother believes the complainant blames the accused for her parents not beingtogether, although the complainant denies this. [62] At times, the accused and the complainant’s mother lived together as a way of helping each other financially.

At other times,the accused moved in to help with household chores and taking care of the children when the mother was ill or injured. The complainantagreed that the accused was a frequent visitor at their home and that he sometimes slept over. She testified that he never lived with themnor had a room in their house and that he only slept on the couch. [63] The complainant was born in 2007. She is the second born of four siblings. Until she came forward with these allegations in2019, the accused had been a constant presence in her life, and that of her siblings.

In addition to spending time with the children whenthe mother was present. The accused would sometimes babysit and help with driving the children to and from various events andactivities. He would often help pay for things for the children. The mother referred to him as the “Manny”. [64] For a few years, the complainant’s mother and the children lived in a house near Rimbey. The complainant said that herfamily lived in this house for three years, from when she was in grade three to grade five.

The accused said that he lived with the family,at this house, for a time around 2016. [65] From Rimbey, the complainant’s mother moved into a house in Sylvan Lake. The mother was in the process of moving out ofthis house, and moving in with the accused, in September of 2019, when the complainant disclosed these allegations to her mom. A weekor two later the complainant told the police of these allegations. Her statement to police was audio and video recorded. Pursuant to s715.1 of the Criminal Code, that recorded statement became her evidence in chief in this trial. The complainant’s evidence

[ 66 ] To the police, the complaint said that the accused “touched her in bad spots and kissed her the way grown ups kiss”. She explained these events started when her family lived in Rimbey and continued when they lived in Sylvan Lake. She told police that the accused started touching her during the second year of her family living in Rimbey, when she was eight or nine years old. [ 67 ] The complainant described the first incident as happening one night, when she got up to get something to drink. She said that the accused was in the living room where he ‘showed her bad stuff on YouTube and then touched her”.

She explained that the accused told her to sit down on the couch and then he put his hand down her shirt and started to touch her chest. She said that the accused then stood up and told her to go back to bed. [ 68 ] The complainant told police that she woke up early the next day and the accused “did it again”. She described the accused being in the living room where he made her touch “his parts”. She said the accused “grabbed” her hand and put it down his pants. This event ended when they heard a door open, and the accused “ripped” her hand out of his pants and pushed her away.

The complainant’s older brother came into the room and hugged her; the complainant then left to wash her hand. The complainant also told police that the accused touched her chest the next morning - that he put his hand down her shirt and then removed his hand and pushed the complainant away when her brother came into the room. [ 69 ] To the police, the complainant said that the accused kissed her and lifted her shirt and licked her chest at some time when the family lived in Rimbey.

She gave no description of when or where in the house this event happened. [ 70 ] The complainant told police that the accused continued to touch her after her family moved to Sylvan Lake. She said these events would happen when the accused would tell her to come downstairs, when everyone else was upstairs. She said that the accused would lock the door and then touch or kiss her. She told police that the accused “touched her butt” and pushed her against a wall and kissed her in the Sylvan Lake house.

The complainant told police that the last event in Sylvan Lake happened when the accused was getting ready to leave. He told her to come downstairs, where he locked the door and kissed her. [ 71 ] The complainant told the police that the night before she came to talk to the police, the accused whispered to her and told her to lie and say that she made up the allegations. [ 72 ] In cross examination, the complainant said the accused only showed her pornography on his phone on the first night. It was the next morning that he touched her chest.

She said that the accused had his hand inside of her shirt when they heard her brother in the hallway. This is when he removed his hand from under her shirt and pushed her away. [ 73 ] In describing touching his penis, the complainant said that she and the accused were both sitting on the couch. He stood up and unbuttoned his jeans while she stayed seated on the couch. The accused told the complainant to stand up and come closer to him. He then “grabbed” her hand and made her touch his penis. She said he removed her hand and pushed her away when her brother came into the room.

She gave no other description of what specifically she felt when her hand was down the accused’s pants. [ 74 ] In cross examination, the complainant described another event at the Rimbey house, where the accused lifted her shirt, licked her chest and “groped her butt”. She said this happened at a porch, near the back door, when her mom and siblings were in the basement watching a movie. [ 75 ] In cross examination, the complainant said the events of sexual touching happened in the basement of the Sylvan Lake house, as well as in the lobby by the front door, and a few times on a couch.

She said that the accused only touched her chest in the basement, he did not lick her chest or kiss her in the basement. Elsewhere in cross examination, she said that the accused both touched and licked her chest in the basement of this house. [ 76 ] The complainant described the last event at the Sylvan Lake house happening when the accused lifted her up, pushed her against a wall, and gave her “an adult kiss”.

She said this happened at the front lobby of the house while her mom and siblings were upstairs. [ 77 ] The complainant described the basement of the Sylvan Lake house as being a large area, without walls. The laundry was in the middle of this space with only support beams around it. She said the basement door did not have a lock. The accused’s evidence [ 78 ] The accused testified that he lived with the complainant’s mother, on and off, over the years, starting in 2012, when the complainant’s parents were still together and lived in a house near Sylvan Lake.

In late 2016, he again moved in with the complainant’s mother. This was when the mother, and children, lived in Rimbey. In this house, the accused said that his bed and personal items were set up as a makeshift bedroom in the unfinished part of the basement. [ 79 ] The accused first learned of these allegations a couple of days after the complainant disclosed them to her mom when the mother phoned the accused and asked him if there was anything that he wanted to tell her. This is when the mother told the accused of some of the complainant’s allegations.

Later, the accused and the complainant’s mother talked inside the mother’s vehicle, with none of the children present. [ 80 ] The accused denied these allegations. He said that, upon hearing the complainant testify at the preliminary hearing, he was convinced she had fabricated these allegations as a way of getting her parents to reunite. As I mentioned earlier in these reasons, the complainant was not cross examined on any aspects of her preliminary hearing evidence.

I have no evidence of what she may have said at the preliminary hearing. [ 81 ] In cross examination, the Crown questioned the accused on portions of his statement to police. In his police interview, the accused referred to something as being “too intimate” with the complainant. When asked in cross examination about what was “too intimate”, the accused referred to a situation he described as his “biggest regret” in which he called the complainant a “fatso” after she took some ice cream from her younger brother. The accused described how he instantly regretted his words and the hurt they caused the

complainant. He said that afterwards, in his attempts to repair their relationship, he was making a greater effort to be encouraging and complimentary to the complainant. He thought the complainant had perhaps misinterpreted these efforts and that she reciprocated with what the accused described as “a little girl crush”. He explained this is what he meant by things becoming “too intimate”. [ 82 ] I note the complainant was not asked any questions about this ice cream incident nor of the impact on her of the accused calling her “fatso”.

She was not asked any questions about having a “crush” on the accused. [ 83 ] To the police, the accused said he was not “vigilant enough” when it came to kissing, “like kissing too long, a double smooch”. The accused told police that he “slipped up with that”, “that it got to something that it should not have been. Still not like lovers but, this one I can’t…”. When asked in cross examination if he acknowledged there was a kiss that lingered too long, the accused said that he was feeling agitated and pressured in the interview and he was looking for “anything that would get him out of there”.

He acknowledged what he said in the interview but explained that he was not being truthful at that time. In cross examination, he said the moments of intimacy that lasted too long were the hugs and that after age six, or so, there was no kissing on the lips. Analysis [ 84 ] Following the tests as set out in WD and Ryon , I will first examine the evidence with a view to determining if I believe the accused’s denial, or other exculpatory evidence. [ 85 ] The accused denied that he kissed or touched the complainant and denied that he forced her to touch his penis.

His evidence in this regard did not change from examination in chief to cross examination. That is, there were no internal inconsistencies in his evidence. Other than the complainant’s version of events, there were no external inconsistencies in his evidence. [ 86 ] To the extent that the accused was impeached with any prior inconsistent statements regarding the specifics of these allegations, it was in relation only to his statement to police that he was not “vigilant enough” when it came to kissing. In this trial, he said that he was not truthful when he said this to police.

The Crown’s cross examination did not otherwise touch on the complainant’s allegations. [ 87 ] The Crown describes the accused’s evidence, both in chief and in cross examination, as “evasive and discursive”. When asked in cross examination questions that required a simple yes or no answer, for example, the Crown argues the accused frequently became argumentative and attempted to re-direct the question.

The Crown argues I should not believe the accused because his manner of answering questions became “so equivocal and meandering that there is nothing to believe”. [ 88 ] I listened to the recording of the accused’s evidence again in my preparation of these reasons. I noticed that on most, if not all, questions the accused tended to give long-winded answers.

This was the case when he was asked about more neutral topics and when he was asked questions more specific to these allegations. [ 89 ] By way of example, when asked in examination in chief to describe his relationship with the complainant and her siblings, the accused answered that he has always loved kids; that he is the third of six children and that he has a lot of nieces and nephews, and two great nieces. He talked about growing up around kids and about his parents’ families. He described that he has felt a strong connection to family and that he appreciates children.

He gave this long description before answering that he was always close with the complainant and her siblings, and more so with the youngest two children. [ 90 ] In cross examination, when asked about these allegations, the accused tended to try to control or deflect the direction of the narrative. By way of example, when asked if he considered that the complainant, as an 11-year-old child, perhaps had difficulty processing the alleged events, the accused entered into a long answer that started with describing that he has many nieces and nephews and has been around children through his life.

He spoke of his lifelong experience with children and how they process events. He described how children change their behaviour when feeling vulnerable; that they become moody and sullen. He felt it remarkable that the complainant did not seem bothered. In the end, I re-directed the accused back to the original question of whether he considered if the complainant was having difficulty processing the alleged abuse.

Only then did he answer “no” he did not consider this. [ 91 ] This leads me to wonder if this style answering is simply the way that the accused talks. [ 92 ] In KHT , Justice deWit noted that one must remember the circumstances of a witness when assessing their credibility. Witnesses who are not experienced in court matters are often intimidated by the court process. Witnesses who are being cross examined, and who may not understand the questions asked, may be reluctant to readily agree. This does not always mean that these witnesses are being evasive or that such evasiveness is an indication of dishonesty.

KHT at para 21. [ 93 ] When I consider the accused’s evidence, I must remain mindful that before hearing him testify in this trial, I had never heard the accused speak. I don’t know how he speaks and answers questions in a more normal setting. While the tone and tenor of the accused’s answers changed somewhat from his examination in chief to his cross examination, I am mindful that the tone of questioning in cross examination was confrontational. It stands to reason that the way the accused, or anyone, might respond to this type of questioning might also change.

I simply don’t know if these long-winded answers reflected the way the accused normally talks, or if they were an extension of him feeling intimidated and uncomfortable with the court process, or whether he was being evasive and dishonest in his testimony. [ 94 ] Where I do have difficulties with the accused’s answers when questioned on his statement to police are where the accused told police about things becoming “too intimate” and where he talked not being “vigilant enough” with kissing. [ 95 ] When I consider whether I believe the accused’s denials, the term “believe” requires total acceptance of his exculpatory version of events.

I must ask myself whether the accused’s testimony was so persuasive that I completely believe his denials. KHT at para 41. [ 96 ] I don’t accept the accused’s explanation that his “biggest regret” was calling the complainant “fatso” over a stolen scoop of

ice cream. Not only do I have no evidence of how the complainant perceived or remembered this event, the accused’s description of the gravity of this episode is, to my mind, disproportionate to the event itself. In short, I don’t believe that this ice cream episode was as big of a deal as the accused made it out to be. [ 97 ] The accused’s description of this event, and the traumatic effect he says it had on the complainant, rings untrue with me.

I don’t believe it is plausible that this ice cream incident, and the accused’s response to it, triggered such damage to his relationship with the complainant that in his efforts to repair this damage, there were prolonged hugs that became “too intimate”. I don’t know what the accused regards as his “biggest regret” nor what he meant by things becoming “too intimate” with the complainant.

I do not accept the answers that he provided here as truthful. [ 98 ] The accused said that he lied to police about the kissing – that he felt intimidated by the police and would have said anything to end their “interrogation” of him. [ 99 ] The accused’s statement to police is not before me in evidence. At the outset of this trial, the Defence admitted the voluntariness of the accused’s statement to police.

On the strength of that admission, we did not enter a voluntariness voir dire and the statement was not played in court, instead the Crown used portions of the statement in its cross examination of the accused. Without that statement, I have no evidence on which I can assess the veracity of the accused’s claim that he felt intimidated and lied to police as a way of ending the police interview against his evidence in trial that there was no kissing that went too far. [ 100 ] For these reasons, I do not fully believe the accused’s denials.

Following the direction of the Court of Appeal in Ryon , I must next determine if I can resolve the conflicting evidence in relation to the accused’s guilt. The second stage of WD / Ryon [ 101 ] The Alberta Court of Appeal instructs me to try to resolve the conflicting evidence bearing on the accused’s guilt. In so doing, I must keep in mind that this trial is not a credibility contest that requires me to choose one conflicting version over the other. If, after careful consideration of the evidence, I am unable to decide whom to believe, I must acquit.

Ryon at para 51 . [ 102 ] I have explained why I am unable to fully accept the accused’s version of events. The Crown’s version comes only from the complainant. There is no external or independent evidence to support her allegations, nor does there need to be. The law does not require that her evidence be corroborated. [ 103 ] I have already reviewed the complainant’s evidence in earlier portions of these reasons. In her evidence, there are both consistencies and contradictions between her statement to police and her cross examination in this trial.

Her overall description of these alleged events was mostly the same, but not completely. [ 104 ] The complainant said that the accused often slept over on the couch, but that he never lived with her family and never had a bedroom in their house. This contradicts the evidence of the complainant’s mother and father and the accused who all said that the accused lived with the family, on and off, over the years. The accused said he had a makeshift bedroom in the basement of the Rimbey house. [ 105 ] These are the types of inconsistencies that I must keep in mind when assessing the evidence of a child witness.

Children mark time and space differently than adults do.

In my assessment of the complainant’s evidence in this trial, these types of inconsistencies raise no concerns for me in relation to the credibility and reliability of her evidence. [ 106 ] When I keep in mind the presumption of innocence and the Crown’s burden to prove these allegations beyond a reasonable doubt, I must pay closer attention to the inconsistencies in the complainant’s evidence that touch directly on the accused’s guilt. [ 107 ] To the police, the complainant said that the first incident happened one night when the accused showed her “bad stuff” on his phone and reached under her shirt and touched her chest.

She said the next day “he did it again”. In cross examination, the complainant said that the accused only showed her pornography that first night. [ 108 ] In recounting the events of the next morning, the complainant does not appear to describe or suggest that she had her hand in the accused’s pants while he had his hand under her shirt. She appeared to describe these as two separate events. Yet, she described both events as happening when her older brother walked into the room.

In one version, the accused removed his hand from her shirt and pushed her away; in another, he “ripped” her hand from his pants and pushed her away. This is an internal inconsistency in her evidence that is not resolved either by an explanation from the complainant or by any other evidence. [ 109 ] The complainant spoke to police a few weeks after the last alleged event at the Sylvan Lake house. More than two and a half years later, she testified in this trial.

To the police, the complainant said that the accused touched and kissed her in the basement of that house, behind a locked door, when her mom and siblings were upstairs. She said that the Sylvan Lake house was smaller, and the accused touched and kissed her in the basement to avoid being caught.

In her evidence before me, she said the basement door did not have a lock, and that the accused also touched her by the front door of this house and a few times on a couch while her family members were also in the house. [ 110 ] In one part of her cross examination, the complainant said the accused only touched her chest in the basement, that he did not kiss her or lick her chest in the basement. Later, in cross examination, she added that the accused also licked her chest in the basement. [ 111 ] There must be consistency in recounting certain details around these alleged events to give them credence.

How much consistency in detail will be sufficient to convince a trier of fact of the truth of the allegations will depend on the circumstances of each case. KHT at para 80. [ 112 ] Concerning to me in relation to the allegations from 2017, at the Rimbey house, is the complainant’s internally inconsistent explanation of the accused both touching her chest and forcing her to touch his penis when her brother entered the room. I don’t believe

that these two events were taking place at the same time. From the complainant’s evidence, I’m not sure which of these events, if either of them, were taking place when her brother walked into the room. [ 113 ] Also concerning to me, in relation to the 2019 allegations, is that in one version, the accused only touched and kissed the complainant in a secluded part of the house, behind a locked door.

In another version, there was no lock on the door, and the alleged events also took place in non-secluded parts of the house, with the complainant’s mother and siblings also present in the house. [ 114 ] To the police, the complainant described the accused lifting her up, pushing her against a wall and giving her an “adult kiss” when they were in the basement of the Sylvan Lake house doing laundry. Here, she described the basement as a large area, with the laundry in the middle, without walls.

This description of the basement of the Sylvan Lake house is inconsistent with the events that she described to the police as taking place in that basement. [ 115 ] These inconsistencies in the complainant’s evidence, and the changes in her evidence from the version she told the police to the version she recounted in this trial, leave me with significant concerns about the reliability of her evidence. [ 116 ] I also have concerns in relation to the credibility of at least one aspect of the complainant’s evidence.

To the police, she said that the accused told her to lie about these allegations and say that she made them up. She said his happened the night before the complainant gave her statement to police. [ 117 ] The evidence before me is that the complainant’s mother was understandably angry with the accused after the complainant disclosed these allegations to her mom. On the complainant’s evidence, her mom was cautious afterwards and made sure the accused was not alone with the complainant or her sister.

On this evidence, it seems neither possible nor plausible that the accused had the opportunity to be close enough to the complainant to whisper anything to her. I don’t believe the complainant was being truthful when she told the police that the accused told her to lie about these allegations. [ 118 ] For these reasons, I am unable to believe the complainant’s evidence in relation to these allegations.

Conclusion [ 119 ] In relation to the events alleged to have occurred in 2017, the complainant’s description of the accused touching her inside her shirt is internally inconsistent with her description of the accused forcing her to touch his penis. There is no other evidence to resolve this conflict in her evidence.

This, combined with the accused’s denials of these events, does not persuade me beyond a reasonable doubt that the accused forced the complainant to touch his penis nor that he kissed or touched the complainant in a sexual way in the Rimbey house, as alleged. [ 120 ] In relation to the events alleged to have occurred in 2019, the complainant first described these events as taking place in a secluded part of the house, behind a locked door. She later expanded her description to include non-secluded areas of the house, with her family also present in the house.

She described the accused lifting her up and pushing her against a wall and kissing her while doing laundry in the basement. Her description of that basement is not consistent with these alleged events. This, combined with the accused’s denials of these events, does not persuade me beyond a reasonable doubt that the accused kissed and touched the complainant as alleged in the house in Sylvan Lake. [ 121 ] The quality of evidence needed to convict a person beyond a reasonable doubt must be convincing, consistent, and reliable. KHT at para 86.

Here, I find the complainant’s evidence was not sufficiently strong to allow me to disregard the accused’s denials. While I do not fully believe the accused, I am unable to conclude beyond a reasonable doubt that he is guilty. For these reasons, the charges against the accused are dismissed. Heard on the 24 th , 25 th and 26 th day of May 2022. Dated at the City of Red Deer, Alberta this 21 st day of September 2022. Eleanor J. Funk J.C.K.B.A. Appearances: Stephen J. Hill for the Crown Muhammad Ishaq

for the Accused