R v Fiestas, 2023 ABCJ 112

In the Alberta Court of Justice Citation: R v Fiestas, 2023 ABCJ 112 Date: 20230606 Docket: 200779668P1 Registry: Calgary Between: His Majesty the King - and - Jose Demetrio Fiestas 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 By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way.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. Judgment of the Honourable Justice B.R. Fraser Introduction [ 1 ] The accused is charged with sexual assault and touching a child complainant. She says this accused touched her when she slept over at the accused’s home with her cousins, who were the accused’s children. The complainant was born on May 31, 2007. She was 15 when she gave evidence.

She estimated she was 6 to 8 years old when this happened, between 2014 and 2016. In cross she allowed she could have been 5 years old when it happened. As a result, the Crown applied to amend the Information to conform to the evidence and the Information was amended from 2014 to 2012 to 2016. [ 2 ] The complainant states when she was young she often played with her cousins at their place and would sleep over. It was common for the children to sleep in the same bedroom. On this particular night there were four children and her cousins’ mother sleeping in the same bedroom.

Their mother and the accused had separated but she occasionally visited the children and slept over with them as she did on this particular night. The mother and two of the children slept on the bed. The complainant and one cousin slept on the floor. She slept near the bed and the cousin beside her near the wall. [ 3 ] During the night the accused came into the bedroom to check on them and left. He returned and bent over the complainant, put his hand down the bottom of her pyjamas and touched her vagina with his fingers. The complainant was awake but pretended to be

asleep. It did not last long and he withdrew his hand and left the room. He returned a third time and did the same thing. [4] The complainant says she was afraid to say anything to her aunt. It was not until December 2018 when she was 11 years oldthat she told her grandmother of the incident who alerted the authorities. The complainant was living with her grandmother at that time. [5] The complainant was the only witness called by the Crown. [6] The accused was called by the defence and was their only witness.

The accused acknowledges his children lived with himduring that time and he was separated from their mother who lived elsewhere. It was his evidence the complainant never came to hishouse and played with his children nor did she sleep over nor did his children’s mother sleep over. In other words, the incident did nothappen and could not have happened because the complainant was not there between 2012 and 2016.

The Applicable Law Credibility [7] The Law of Credibility [8] When credibility is an issue, it raises the Supreme Court of Canada case of R v W(D), (SCC), [1991] 1 SCR 742 andauthorities following: [9] In a case where the accused testifies and the issue is credibility, the rule of reasonable doubt applies to that issue. There are twosituations where the court must acquit the accused. First, if the trier of fact believes the accused.

Second, even if they do not believe theaccused but his evidence raises a reasonable doubt as to his guilt when considered in the context of the evidence as a whole. [10] The concept of reasonable doubt was explained by the Supreme Court in R v Lifchus, (SCC), [1997] 3 SCR 320(Lifchus). The standard of proof beyond a reasonable doubt is intertwined with the presumption of innocence. It is based on reason andcommon sense. It is logically connected to evidence or absence of evidence. It does not involve proof to an absolute certainty. It is notproof beyond any doubt, nor is it an imaginary or frivolous doubt.

On the other hand, more is required than proof that the accused isprobably guilty. If the conclusion is only that the accused is probably guilty, he must be acquitted. [11] In 2019, the Alberta Court of Appeal handed down the case of R v Ryon, 2019 ABCA 36, (Ryon) where they reiterated not only thatthe accused evidence must be considered in the context of the evidence as a whole but that R v W(

D) does not stand for the propositionthat the accused’s evidence must be considered first. They adopted the approach proposed by Doherty J.A. in R v Carriere (2001), (ON CA), 151 OAC 115 (Ont. C.A.). [12] They then referred to the Supreme Court case R v Dinardo, 2008 SCC 24 (Dinardo) as support for considering the accused’sevidence in the context of the evidence as a whole. [13] It is only exculpatory evidence the instruction of W(

D) applies to. [14] In R v Achuil, 2019 ABCA 299, the Court of Appeal clarified its wording in Ryon regarding the second prong of W(D). [15] In assessing credibility there is no magic formula provided to triers of fact. Instead, there are a number of questions to beconsidered, for example, whether the witness seems to have a good memory of the relevant events, whether the evidence provided by awitness seems reasonable and consistent and whether there is any reason why a witness would not be telling the truth.

When assessingthe evidence of the accused, it is impermissible to assume that the accused will lie to escape conviction, to do so would undermine thepresumption of innocence, R v Laboucan, 2010 SCC 12, [2010] 1 SCR 379, at paras 14-18. The Evidence of Children [8] The complainant was 15 when she testified and was still a child. She was anywhere from 5 to 9 when the incident shedescribed occurred. [22] The Criminal Code stipulates a person is a child until they reach the age of l6.

I am cognizant the Supreme Court has said it must beremembered that to some extent the evidence of child witnesses is to be treated differently from that of adult witnesses when determiningcredibility. There have been changes in the attitude of the law toward the evidence of children. Their evidence is not to be treated asinherently unreliable or to be treated with special caution or to be considered less reliable than evidence of adults. Details that may beimportant to adults like time and place, may not be to children. (R v RW, (SCC), [1992] 2 SCR 122).

In R v GB (SCC), [1990] 2 SCR 30 the court stated the standard of the “reasonable adult” is not necessarily appropriate in assessingthe credibility of children. [23] However, in RW the court stated, “While the evidence of children is still subject to the same standard of proof as the evidence ofadult witnesses, in criminal cases, it should be approached not from the perspective of rigid stereotypes, but on a common sense basis,taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.” The court should not beinfluenced by old stereotypes relating to the inherent unreliability of children’s evidence.

While children may not be able to recountprecise details and communicate the when and where of an event with exactitude, this does not mean they have misconceived whathappened to them and who did it.

Analysis [ 9 ] The complainant described the event of the touching in detail without any variance on the stand both in direct and cross. She described where the incident took place, who was in the room, where each person was sleeping, how many times the accused came into the room and what he did each time. She described the bedroom as Paulette’s because she understood the big bedroom was hers. She described how the accused put his hand down the front of her pants both times, on her vagina and moved his fingers around. [ 10 ] She was unsure of exactly what year this occurred and what age she was at the time.

In direct she said she was 6 to 8 years old. In cross she allowed she could have been 5. She did not know where the house was in the city as it seems she was always driven there. In cross she thought her grandmother, who lived in Calgary, drove her to the accused’s house. She lived on the Siksika reserve with her mother and others as well as her grandmother in Calgary and her father in Cluny.

She often visited her cousins at the accused’s home. [ 11 ] None of what she cannot recall such as age, year, location affects her credibility in my view since she is a child and such details would not be important to her, especially at the time of the incident. [ 12 ] She apparently gave a video statement to the authorities to someone named Heather in May 2020 when she was 12. She was cross-examined on a number of inconsistencies between that statement and her evidence under oath. Most were details she gave on the stand which were not in the statement.

She explained the differences because she is older now and can explain better. In my view, there is always more detail in giving evidence because she is asked for detail in her examination in both direct and cross. When giving a statement she is unsure of what details are important and she is not being asked about them. I have no concern about any details not in her statement that she gave in her evidence. It is completely understandable in most cases but especially given the complainant is a child at all times both at the time of the incident and at the time of giving evidence.

In my view, none of this affects her credibility. [ 13 ] I find the complainant was sincere in her evidence and was speaking the truth as she believed it to be. [ 14 ] The reliability or accuracy of her evidence is another issue. Reliability and accuracy involves considerations of her ability to accurately observe, recall and recount the events in issue ( R v Morrissey , 1995, 220 OR (3d) 514 (Ont CA) .

The defence spent a great deal of time on specifics such as where the home was located, whether she was describing the correct bedroom, whether she told someone by the name of Keisha, a girl friend, the fact she couldn’t remember meeting seven people at the Child Abuse Centre, that she said in the statement it happened when she was going to bed, that she said in the statement she did not know about the second time or didn’t remember, or whether there was a TV in the bedroom.

I find none of these affect her reliability or accuracy as to the fact she was touched. [ 15 ] What does concern me about the reliability of her evidence is her description of where the accused was situated when he touched her. She says he was standing at her feet and bending over her and put his left hand down her pants while she was laying on her back. As defence counsel contends, this would be a very difficult position for him to touch her at such an angle. In her statement she says he was standing beside her in between her and the cousin next to her on the floor when he touched her.

She did not know what hand he used. The veracity of this description causes me some concern as it reflects on the very act of the complaint and the reliability of the description. [ 16 ] The accused’s evidence amounts to a version that not only did it not happen but could not have happened because the complainant never slept over at his house between 2012 and 2016. Nor did his ex-wife sleep over after they separated. Throughout his evidence I found his sincerity and his willingness to speak the truth lacking. Often his answers were vague and/or evasive.

He has a criminal record which does not by itself mean he is not credible or reliable but the record was shown to him and read to him and he admitted it. When cross-examined on it, he tried to explain each and every conviction as to how he was really innocent and not guilty of what he was convicted of. This seemed typical of his entire evidence that he never did anything wrong. Everybody else did.

If the issue was solely whether he touched the child complainant, I would find that he had no willingness to speak the truth. [ 17 ] However, the issue that concerns me is his evidence that she never slept over at his house and in fact was never there during the time frame and neither was his ex-wife when the complainant says she was there often to play with her cousins when they were young and was there more than once a month.

She said she had a good relationship with the accused whom she called “uncle” and that “he took care of us.” She obviously knows him well. [ 18 ] The issue in determining guilt or innocence in this case is knowing for a fact who is correct. Did she sleep over at his house or did she not? If there was corroborating evidence one way or the other, that would clearly define guilt or innocence. There were four other people in that bedroom that night as well as the grandmother who probably drove her over according to the complainant.

None were called by either the Crown or the defence to corroborate the complainant or the accused. If any of them would corroborate the complainant slept over at any time, that would corroborate the evidence of the complainant and show conclusively the accused was lying. Alternatively, if any of the five said the complainant never slept over, that would corroborate the version of the accused and not the complainant.

It seems so simple to extract the truth which is what we seek. [ 19 ] I can understand the Crown not calling such evidence in their case since they would have no idea what the accused would say especially that the complainant never slept over. It was certainly open to the defence to call that evidence to corroborate the accused’s version. They did not. At the end of the defence case, it was open to the Crown to apply to call rebuttal evidence to decide the issue.

I particularly asked the Crown if they are calling any evidence and I received an emphatic “no.” During final submissions I asked the Crown why they did not apply to call any witnesses in rebuttal on that issue and was told they were not reliable. It is hard to understand why none of five witnesses would be unreliable on such a simple issue. I understand the defence does not have to prove an accused’s innocence, only raise a reasonable doubt so there is no onus on them to corroborate the accused’s version. On the other hand, it is incumbent on the Crown to seek justice and look for the truth.

To not call any of the five potential witnesses to verify whether she slept over or not, does not assist the Court in finding whether the accused is guilty beyond a reasonable doubt.

Conclusion [ 20 ] Since I am unable to conclude whether the complainant slept over at the accused’s house in view of the accused’s version she never did, coupled with the complainant’s description of the position the accused was in when he touched her which puts him at a very difficult angle to do what she described he did, I find the defence has raised a reasonable doubt as to guilt despite my finding of the credibility of the complainant and that I do not believe the accused’s evidence in general. I find the accused not guilty. Dated at the City of Calgary, Alberta this 6 th day of June, 2023. B.R.

Fraser A Justice of the Alberta Court of Justice Appearances: A. Russell for the Crown G. Wolch for the Accused