R v D.A., 2023 ABKB 358

Court of King’s Bench of Alberta Citation: R v D.A., 2023 ABKB 358 Date: 20230615 Docket: 210427019Q1 Registry: Edmonton Between: His Majesty the King Crown - and - D.A. Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of the Honourable Justice John T. Henderson _______________________________________________________ I. Introduction

[1] The Accused is charged with three counts of sexual interference contrary to s 151 of the Criminal Code of Canada RSC1985, c C-46 (Criminal Code) and three counts of sexual assault contrary to s 271 of the Criminal Code. These counts relate toallegations that the Accused sexually touched two of his stepdaughters who were between approximately 7 and 12 years of age at thetime of the alleged offences. [2] The Accused is also charged with one count of making sexually explicit material available to one of his stepdaughters for thepurpose of facilitating the commission of sexual interference contrary to s 171.1(1)(

a) of the Criminal Code. [3] Finally, the Accused is charged with assault with a weapon in relation to his wife, GR contrary to s 267(

A) of the CriminalCode. [4] The Crown submits that the evidence tendered proves each of the offences beyond a reasonable doubt and seeks a convictionon each of the counts. [5] The Accused denies all the allegations that have been made against him and seeks an acquittal on all counts. The Accusedsubmits that the allegations arose in the context of a matrimonial dispute, are untrue, are based on unreliable evidence, or alternatively,have been fabricated against him. II. Background Facts [6] The Accused and GR are originally from Columbia and came to Canada separately.

They met in November 2009 whileliving in Quebec, moved to Edmonton in June 2011, and married on December 31, 2011. They separated on February 19, 2021. [7] GR has a daughter from a prior relationship, LR, who was born in 2008. LR lived with the Accused and GR until the date ofseparation. LR considered the Accused to be her stepfather. [8] GR has a sister, IM, who was born in 2010. IM’s mother died in 2012. In consultation with the Accused, GR assumedcustody of IM in late 2011. IM resided with the Accused and GR until the date of separation.

IM considered the Accused to be herstepfather and treated her sister, GR, as her mother. [9] SA is the biological daughter of the Accused and GR. She was born in 2012 and lived with the Accused and GR until thedate of separation. [10] All three children have resided with GR since the date of separation. [11] Between 2017 to early 2021, the Accused and his family resided in two homes. From 2017 to July 31, 2019, the familyresided in an apartment (Apartment 2C).

On July 31, 2019, the family moved into a different residence that the parties described as the“new house” (the new house). [12] GR was generally employed outside the home. Because of the nature of her employment and the hours she worked, GR wasfrequently away from home and often left the children in the care of the Accused. [13] In April 2020, the Accused had surgery and was off work until October 2020. During this time, he was home with thechildren. Because of the COVID pandemic, the children were not in school. The two younger children returned to school in September2020.

LR’s return to school was delayed until November 2020 because of a COVID infection in her school. [14] By the fall of 2020, the relationship between the Accused and GR was rocky. The Accused had become suspicious that GRwas being unfaithful to him and he was jealous. The Accused took steps to communicate with GR’s employer to express his concerns.The Accused’s complaint ultimately resulted in GR’s employment termination on November 16, 2020. III. Assessment of Evidence A. Evidence is Conflicting [15] The Accused does not have an onus to prove anything and was under no obligation to testify.

Despite this, the Accused electedto testify and provided evidence regarding his involvement with the events that give rise to the allegations against him. The Accused’sevidence conflicts in many material ways with the evidence tendered by the Crown. It is therefore necessary to assess the conflictingevidence in accordance with the direction of the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742(W(D)), as explained by R v Ryon, 2019 ABCA 36 at para 51 and R v Achuil, 2019 ABCA 29 at para 18. [16] The direction in W(

D) emphasises the fundamental principle that every accused person is presumed to be innocent until theCrown has proven each of the elements of the offence beyond a reasonable doubt. The burden remains on the Crown throughout the trial;it never shifts to the accused. Conversely, if a reasonable doubt exists as to the guilt of an accused person, then he or she must beacquitted. [17] A reasonable doubt is a doubt that is based on reason and common sense that is logically connected to the evidence, or theabsence of evidence. It is not a doubt that is based on sympathy or prejudice toward or against anyone.

Proof beyond a reasonable doubtnecessarily requires a higher level of proof than probable guilt, but it does not require proof to an absolute certainty. It does not requireproof beyond any doubt, but rather proof beyond a doubt that is not imaginary or frivolous: R v Lifchus, (SCC), [1997]3 SCR 320 at para 36; R v Starr, 2000 SCC 40 at paras 230 – 237.

[18] In recognition of the presumption of innocence and proof beyond a reasonable doubt, the conflicting evidence must beassessed as follows: • If the Accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if notbelieved still leaves me with a reasonable doubt that it may be true, then the verdict must be not guilty. • While I must attempt to resolve conflicting evidence bearing on the guilt or innocence of the Accused, a trial is not a credibilitycontest requiring me to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence, I am unable todecide whom to believe, I must acquit. • Even if I completely reject the Accused’s evidence, I may not simply assume the Crown’s version of events must be true. Rather, Imust carefully assess the evidence I do believe and decide whether that evidence persuades me beyond a reasonable doubt that theAccused is guilty. Mere rejection of the Accused’s evidence cannot be taken as proof of his guilt. [19] The Accused testified that he resided with GR, his two stepdaughters, and his daughter during the times relevant to thecharges against him.

He acknowledged his responsibility as a father figure to his two stepdaughters. [20] The Accused denied that he touched his stepdaughters for a sexual purpose or in a sexual manner. In many respects theAccused’s evidence was a bare denial of the allegations. The bare denials cannot be assessed in isolation.

Instead, his denials must beassessed in the context of the evidence as a whole: R v JWA, 2010 ABCA 406 at para 22, leave to appeal to SCC ref’d [2011] SCCA No153; R v Threefingers, 2016 ABCA 225 at para 67. [21] In undertaking this assessment, it is important to recognize that it is impossible for any accused person to give particulars of“nothing happened”: R v Hilton, 2016 ABCA 397; R v Norman (1993), (ON CA), 16 OR (3d) 295. Moreover, it isunfair to expect an accused person to remember details of completely uneventful events: R v Stuparyk, 2008 ABCA 41 at para 9; R vWCT, 1992 ABCA 24 at para 3.

This is particularly true in circumstances where a father has cared for his children over several years andhas had literally hundreds of interactions with them where touching almost certainly occurred. In the normal course of events, parentsplay with their children, hug them, put them to bed, and wash them. These normal interactions with children can be impossible toaccurately recall months or years after the events.

It is therefore not surprising that an accused person may have difficulty responding toallegations of sexual touching, and they have no onus to do so. [22] In addition to the simple denial of the allegations of sexual touching, the Accused also provided explanations or potentialexplanations for how the incidents described by the Complainants could have occurred. Some of the Accused’s explanations weredirected to specific interactions with his stepdaughters that he recalled.

Other explanations were much more general in nature and wereunrelated to the actual incidents that were the subject of the complaints. [23] To properly address the question of whether the evidence of the Accused is believed, or if not believed leaves me withreasonable doubt, it is first necessary to consider the context of the complaints made against the Accused and the evidence of theComplainants, including an assessment of the credibility and reliability of the Complainants. [24] LR and IM were children at the time of the events and when they testified.

Their evidence must be assessed within theframework explained in R v B(G), (SCC), [1990] 2 SCR 30 [B(G)]. The Supreme Court has recognized that there mayoften be understandable inaccuracies in the evidence of children. Since children experience the world differently than adults, it is hardlysurprising that they may be confused about certain details, such as time and place, which are important to adults: R v W(R), (SCC), [1992] 2 SCR 122 [W(R)] at p 133. Children are also prone to forget details with the passage of time: R v F(CC), (SCC), [1997] 3 SCR 1183 at para 41.

The evidence of children should not be held to the same exacting standards as adults:B(

G) at pp 54 – 55. Regarding evidence about events that occurred in childhood, any inconsistencies, particularly those related toperipheral matters, should be considered in the context of the age of the witness at the time of the events: W(

R) at p 134; R v ADG, 2015ABCA 149 at para 33. B. Counts 1 and 2 – Allegations in Relation to IM [25] Counts 1 and 2 on the Indictment relate to allegations of sexual touching by the Accused against IM. The Crown tendered aCriminal Code s 715.1 video recorded interview of IM by a member of the Edmonton Police Service (EPS) conducted on February 25,2021 (the IM interview). The admissibility of the IM interview was conceded by the Defence at the conclusion of a voir dire, eventhough the events which are the subject of Counts 1 and 2 occurred more than 1.5 years before the IM interview.

While the IM interviewis only admissible if it occurs “within a reasonable time” after the alleged offence, what is reasonable must be assessed based on a fullconsideration of the circumstances including the age of the child, the delay in disclosure, and the reason for the delay: R v L(DO), (SCC), [1993] 4 SCR 419 at pp 466 - 469; R v JDP, 2010 ABCA 299 at para 4.

Despite being admissible, the extent to whichthe contents of the IM interview can be believed and relied upon must be carefully assessed, particularly when there has been a delayfrom the alleged offence to the date of the interview. [26] IM was 12 years old she testified at trial and 10 years old when the IM interview was recorded. During the IM interview, IMwas describing events that occurred when she was between 7 and 9 years old.

IM explained that all the incidents occurred while thefamily resided in Apartment 2C which ended on July 31, 2019. [27] Having watched the IM interview and observing IM during her viva voce evidence, I have concerns with respect to the extentto which I can rely on her evidence. My concerns arise from three factors. The first factor is that the events described in the IM interviewtook place prior to July 31, 2019, when IM was between 7 and 9 years old. As a result, there was likely some degradation in IM’smemory at the time of the IM interview.

The second factor is that during the IM interview, IM testified in a way that suggesteduncertainty, using terms such as “I’m pretty sure” and “I feel like it was.” The third and more important factor is that prior to giving herstatement to police, IM was aware of and had been provided details of the allegations of sexual touching that her older sister, LR hadmade on February 19, 2021. As a result, there is at least some reasonable chance that IM’s evidence was contaminated, conflated, or

influenced by what she had learned of LR’s allegations. It is also relevant that the disclosure by both IM and LR occurred during a break down of the matrimonial relationship between the Accused and GR that had been “rocky” for some time and in which the children, including IM had become enmeshed. For example, IM had witnessed a physical altercation between GR and the Accused in November 2020. IM was aware of allegations of infidelity made by the Accused against GR.

IM was therefore immersed in the matrimonial dispute and may have been motivated to assist GR. [ 28 ] For these reasons, I must exercise caution when assessing IM’s evidence. [ 29 ] During the IM interview, IM explained that the Accused did “horrible” things to her. The earliest of these events occurred between 2017 and 2019 when IM was 7 or 8 years old. The Crown argues that three types of incidents prove the offences in relation to the counts concerning IM. The first is a discrete instance of alleged sexual touching which occurred when the Accused was giving IM a bath.

The second relates to a course of conduct in which the Accused is alleged to have regularly come into IM’s bedroom, pulled down her pants, and sexually touched her. The third is a variation of the second and involves the use of cream while sexually touching IM. 1) The Bathtub Incident [ 30 ] In the IM interview, IM explained that when she was 7 or 8 years old, she showered with GR who assisted with washing “because like sometimes I wasn’t good to wash my private parts.” IM said that she did not shower with the Accused.

However, on one occasion she was having a shower with her sisters and the Accused was also present sitting in the bathtub. IM testified that the Accused touched her when she was in the bathtub.

She explained that “he wanted to wash me because I was little and he said like, he took a long time just to wash my privates” She described the Accused using his hand to wash her privates with the water and described her “privates” as her vagina. [ 31 ] Later in her evidence, IM testified, that the bathtub incident she described actually occurred while she was having a bath with her sisters and not while they were having a shower. This is a minor inconsistency that might be expected of a young child.

It has no impact on my assessment of IM’s credibility or reliability. [ 32 ] The Accused testified that he did not generally assist his children with bathing and that he did not like to do so because it made him feel uncomfortable. However, on one occasion, when IM was 3 ½ to 4 years old, the Accused did help IM with her bath by washing IM’s hair with shampoo and washing her body. He testified that he told IM to wash her vagina. Later in his evidence, he testified that he washed IM’s vagina with water but not with soap.

He explained that he did not use soap because he did not want to hurt IM with his fingers. [ 33 ] In cross-examination the Accused provided a further explanation of this occasion of washing IM. He said that he was concerned that IM was not washing properly and noticed that IM’s vagina was red.

When pressed, the Accused was unable to explain how he could see this redness when IM was sitting in the bathtub with water to her waist. [ 34 ] While some portions of the Accused’s evidence may have been inconsistent in relation to this occasion of washing IM, I conclude that these inconsistencies are not material to the issues in relation to the counts concerning IM. The occasion of washing IM that the Accused described took place when IM was 3 ½ to 4 years old. It was not the same occasion that IM described when IM was 7 or 8 years old.

The Accused did not testify with respect to the bathtub incident that was described by IM, and had no onus to do so. The Accused did give a bare denial and testified that he never touched IM for a sexual purpose or in a sexual manner. [ 35 ] In relation to the bathtub incident, the Accused’s denial of sexual touching gives rise to a reasonable doubt.

Even if I were to accept IM’s evidence as completely truthful and reliable, the touching that IM described would not amount to sexual interference or sexual assault because I have reasonable doubt as to whether the touching was for a sexual purpose or that the touching was of a sexual nature. The touching is equally explained by the need to wash the child.

IM testified that “sometimes I wasn’t good to wash my private parts.” For this reason, the incident of touching IM in the bathtub cannot support a conviction on Counts 1 or 2. 2) Bedroom Incidents [ 36 ] IM also testified about “horrible” events that took place in her bedroom.

IM described that when GR was working at night, the Accused “always comes to my bed and starts touching me … like my private stuff.” She explained that sometimes when this happens, she grabbed her teddy bear, and the Accused “just takes my teddy bear away, takes the blanket off, pulled my pants off and still touches me.” IM said that the Accused used his hand to touch her and described that “he always touches like everywhere of my part, private part.” [ 37 ] IM testified that on one occasion, the Accused touched her “butt” and not her “private parts.” IM described that “one time I was sleeping with my teddy bear alone and then when he came because he wears sandals so I can hear his sandals and he touched by butt instead of my private part.” [ 38 ] IM testified that the bedroom incidents started when the family lived in Apartment 2C when she was about 6 years old.

The touching stopped when they moved to the new house. [ 39 ] The Accused denied touching IM in a sexual manner and provided an explanation for one incident that he thought might have given rise to the incidents described by IM. He testified that IM and her younger sister SA had fallen asleep in the living room in Apartment 2C. The Accused first carried SA to her bedroom, placed her on the bed, and put a blanket over her. He did the same with IM. When he placed IM on the bed, IM was on top of the blankets.

He pulled the blankets from under IM, placed them on top of IM, and then left IM’s bedroom. [ 40 ] In his statement to police, the Accused also explained that on one occasion he was walking past IM’s bedroom when he saw that she was not properly covered. He went into IM’s room and placed the blankets over top of her. He testified that this was very normal.

[ 41 ] The specific incidents described by the Accused in relation to placing blankets over top of IM give rise to no concerns of sexual touching. However, they are not responsive to the assertions made by IM. Again, the Accused has no onus to provide any explanations. [ 42 ] The Accused denied that he sexually touched IM in her bedroom at any time.

I conclude that his bare denial gives rise to reasonable doubt, because of the circumstances under which the allegations were made. [ 43 ] As I earlier explained, I have concerns in relation to the extent to which I can rely on IM’s evidence on the critical issue of sexual touching. These concerns arise in several ways. Most significantly, there is at least some reasonable chance that IM’s evidence was contaminated, conflated, or influenced by what she had learned of LR’s allegations.

In addition, IM was immersed in the matrimonial dispute between the Accused and GR and may have been motivated to assist GR. [ 44 ] In concluding that reasonable doubt exists, I recognize that IM made her own disclosure to GR regarding the Accused years earlier. However, the evidence surrounding that disclosure lacks clarity. In the IM interview, IM explained that the disclosure was specifically in relation to the “cream” incident.

This disclosure does not fortify IM’s evidence in relation to whether the bedroom incidents did or did not take place. [ 45 ] For these reasons the Accused’s simple denial that he never touched IM in a sexual manner gives rise to reasonable doubt. I conclude that it would be very dangerous to convict Counts 1 and 2 on the basis of the bedroom incidents. 3) Use of Cream on IM [ 46 ] IM testified that the Accused used a cream which he placed in her vagina. In the IM interview, IM described an incident where the Accused came into the bedroom and used a cream, although she didn’t know what the cream was.

She later testified that it was the cream that GR used when “her vagina burns” and further explained that “my dad grabbed me and put me in his bed, in my bedroom … so I was still awake, but I didn’t want him to know and then I’m pretty sure he started to put like a cream … but I’m not pretty sure it was a cream but I feel like it was.” After the Accused put the cream on her “private parts”, “he starts touching me and he leaves.” [ 47 ] The Accused denied sexually touching IM in this manner. The Accused’s bare denial gives rise to reasonable doubt.

In coming to this conclusion, I consider IM’s evidence which had inherent weaknesses. IM had a greater level of certainty at trial, but during the IM interview, IM expressed some significant uncertainty. During the IM interview, IM explained that she was “pretty sure” he put the cream on her, and she was not “pretty sure” that it was cream “but feel like it was.” There were also some inconsistencies in IM’s evidence. IM initially said that this happened 20 times but later agreed that it had happened on only one occasion.

This is more than an exaggeration and cannot easily be excused on the basis that the evidence was given by a child. I also take into consideration the very same factors that gave rise to reasonable doubt in relation to the bedroom incident. [ 48 ] The allegations with respect to the use of cream on IM cannot support a conviction on Counts 1 or 2. [ 49 ] I therefore find the Accused not guilty on Counts 1 and 2 of the Indictment. C.

Counts 3 and 5 – Allegations in Relation to LR in 2020 [ 50 ] Counts 3 and 5 charge sexual assault and sexual interference in relation to LR between September and December 2020. [ 51 ] The Crown argues that the only incident in relation to Counts 3 and 5 occurred in September 2020 and involves the Accused rubbing oil on LR’s vagina. For the reasons that follow, I find the Accused guilty of both sexual interference and sexual assault in relation to this incident. [ 52 ] LR was 14 years old when she testified at trial.

The Crown tendered a Criminal Code s 715.1 video recorded interview of LR by a member of the EPS that was conducted on February 25, 2021 when LR was 12 years old (the LR interview). The admissibility of the LR interview was conceded by the Defence at the conclusion of a voir dire . [ 53 ] LR testified that in or around the fall of 2020, the Accused told LR that he had a special oil that was in a little black bottle that was kept in his bedside table which he put on GR when GR was menstruating. The Accused asked LR whether she wanted to use the oil. LR agreed.

The Accused asked LR to pull down her pants, which she did. The Accused put some of the oil in LR’s vaginal area and began massaging the area, including the clitoris. LR described the Accused using his hands to massage this area in a circular fashion for one to two minutes. LR said that this made her feel very uncomfortable. During the LR interview, LR drew a diagram of the area of the vagina that the Accused massaged. [ 54 ] LR testified that some time later the Accused asked her again whether she wanted some of the oil.

This time LR told the Accused that she did not want to use the oil because she felt that he was going to do something bad to her. The Accused asked LR if she thought that he wanted to have sex with her, and she responded by telling him that was what she thought. She then left the room. [ 55 ] The Accused acknowledged that in late September 2020 he applied an oil that was used to address menstrual pain and cramps to LR’s stomach. He described that LR opened her pants and he placed the oil in the lower area of LR’s stomach, below the belly button so that the oil could be used to treat the ovaries.

He agreed that this was the same oil that GR used on her arms and ovaries. [ 56 ] The Accused specifically denied that while applying the oil he rubbed LR’s clitoris or her vaginal area. He explained that he only applied the oil on LR’s stomach. [ 57 ] I do not believe the Accused. It is not possible to reconcile the Accused’s description of this incident with his other evidence that he was uncomfortable bathing his children, even when they were young. Having a 12-year-old girl open her pants so that oil could be applied to treat the ovaries is far more invasive than washing young children in a bath.

The Accused’s explanation does not make any

sense. Furthermore, there is no evidence that LR was experiencing any menstrual pain or cramps. To the contrary, LR denied this.

In these circumstances, the Accused’s evidence that he did not use the oil to massage LR’s vagina and clitoris is not believable and does not give rise to reasonable doubt. [ 58 ] I still need to consider LR’s evidence to determine whether it is sufficiently credible and reliable to prove beyond a reasonable doubt that when the Accused applied the oil, the Accused touched or massaged LR’s vagina and clitoris, and if so, whether this touching was for a sexual purpose and of a sexual nature. [ 59 ] LR was a credible and reliable witness. She was older and more mature than IM.

LR’s evidence was with respect to events that took place only 3 to 5 months prior to the LR interview. She was clear in her answers and there were no major inconsistencies in her evidence. [ 60 ] In assessing LR’s evidence, I have considered that she was also aware of the marital breakdown between the Accused and GR and of the Accused’s allegations of GR’s infidelity. Despite this, I am satisfied that LR’s evidence is credible and reliable. LR disclosed the Accused’s sexual touching on February 19, 2021 without knowing that IM would also be making allegations.

Thus, I conclude that LR’s evidence was not influenced by allegations made by IM. [ 61 ] I find that in late September 2020, the Accused applied oil to LR when LR was less than 16 years of age. I find that he massaged the oil on LR’s vagina and clitoris for approximately 1 to 2 minutes. I infer that this massage was for a sexual purpose because there is no other reasonable explanation for massaging this part of LR’s body.

I therefore conclude that the Crown has proven each of the elements of sexual interference beyond a reasonable doubt. [ 62 ] I also conclude that on an objective basis, the massaging of LR’s vagina and clitoris was touching of a sexual nature. Since LR was under 16 years of age she did not have the capacity to consent to the sexual touching and the Accused knew that this is the case. As a result, I find that the Crown has proven each of the elements of sexual assault beyond a reasonable doubt. [ 63 ] I find the Accused guilty on Counts 3 and 5. D.

Counts 6 and 7 – Sexual Touching of LR on February 19, 2021 [ 64 ] LR testified that on Friday, February 19, 2021, she came home from school and was watching TV with her sister and GF. She testified that she could hear the Accused whispering to her. She ignored him because she did not want to go close to him. The Accused’s whispers became louder, so she went to the Accused’s bedroom and turned on the lights. She found the Accused sitting on the bed naked, although she immediately corrected this and said that he was wearing boxer shorts. The Accused told LR to turn off the lights.

He pulled LR close to him, hugged her, and placed her on the bed. The Accused then got on top of LR and his private part, which she described as his penis, was touching her private part, although she was wearing clothing at the time. She described that it felt like something was “poking” her. LR screamed. The Accused responded by saying that he had just been playing and told LR not to tell anyone about the incident. LR left the room and went to tell GR what had happened.

The Accused went to have a shower. [ 65 ] After this incident, GR left the home with LR, IM, and SA and did not return. [ 66 ] The Accused testified that he was sitting on the main floor of the home using his phone and watching TV. He went up the stairs intending to have a shower. He met LR as she was coming down the stairs. The Accused described LR grabbing him by the neck and he carried her to the second floor of the home. He put LR on the floor at the top of the steps and began to “play around” with her. When this finished, the Accused got up and went into the bedroom.

LR followed him into the bedroom and asked, “who called me?” to which the Accused responded, “not me.” The Accused tightly hugged LR during which she called out to GR. In response to this, the Accused released LR from the hug and said, “I was just playing with you.” LR left the room. [ 67 ] The Accused denied that he put LR on his bed, denied that he got on top of LR, and denied that he told LR to turn off the lights. [ 68 ] The Accused acknowledged that his hug may have hurt LR, but in a playful way. He did not apologize when he learned that he may have hugged her too tightly.

He acknowledged that he was wearing only boxer shorts at the time of this event. [ 69 ] When assessing the evidence of the Accused for the purpose of determining whether I believe his evidence or whether his evidence leaves me with reasonable doubt, I must, among other things, assess the credibility and reliability of both the Accused and LR. [ 70 ] The Accused had a clear recollection of this event. He spoke forcefully about the event. He acknowledged that he touched LR, but denied that the touching was for a sexual purpose. The Accused’s evidence was concerning in several respects.

When the Accused learned that he may have hurt LR, he did not say he was sorry, nor did he ask whether she was injured. Instead, he said that he was playing. The Accused took no steps to ensure that LR was not upset. Instead, he went to have a shower. When the Accused was confronted by GR after the shower, he simply said that LR was lying. [ 71 ] When I consider LR’s evidence, I conclude that she is a credible and reliable witness who was accurately reporting of the circumstances of the events as best as she could.

The LR interview was conducted within a few days of the incident, which eliminates any real possibility of degradation of memory. The only minor inconsistency in LR’s evidence on this point was that LR initially said that the Accused was naked at the time, but she immediately corrected this and explained that he was wearing boxer shorts. This inconsistency does not affect her credibility. [ 72 ] The assessment of the evidence in relation to this incident does not require that I choose between two conflicting versions of the facts.

Instead, when I assess the evidence, the task is to determine whether, in the context of the whole of the evidence, I am left with reasonable doubt. When I assess the evidence on this point, I conclude that I do not believe the Accused and his evidence does not leave me with reasonable doubt.

[ 73 ] I find that on February 19, 2019, the Accused whispered to LR, which prompted LR to go into the Accused’s bedroom. LR found the Accused on his bed wearing only his boxer shorts with the lights turned off. I find that LR turned on the lights and the Accused asked that she turn them off. I find that the Accused grabbed LR and placed her on the bed, got on top of LR in such a way that their clothed genital areas touched. I find that LR could feel the Accused’s penis poking at LR’s genital area. [ 74 ] I infer that the Accused placed his body on top of LR’s body for a sexual purpose.

There is no other reasonable inference available in the circumstances, particularly given that their genital regions were touching. I conclude that this was by design and was for a sexual purpose. Since LR was under 16 years of age, I conclude that the Crown has proven each of the elements of sexual interference beyond a reasonable doubt. [ 75 ] I also conclude that on an objective assessment, when the Accused got on top of LR so that their genitals were touching, this amounted to touching of a sexual nature.

Since LR was under 16 years of age, she did not have the capacity to consent to the sexual touching and the Accused knew that this is the case. As a result, I find that the Crown has also proven each of the elements of sexual assault beyond a reasonable doubt. [ 76 ] I find the Accused guilty of sexual assault on Count 6 of the Indictment in relation to the incident that occurred on February 19, 2021. I also find the Accused guilty of sexual interference on Count 7 with respect to the same incident. E.

Count 4 – Making Available Sexually Explicit Material [ 77 ] Count 4 of the Indictment charges an offence under s 171.1(1)(

a) of the Criminal Code . This subsection makes it an offence for any person to, among other things, make available to a person under 18 years of age, any sexually explicit material for the purpose of facilitating the commission of any one of several offences, including sexual interference. [ 78 ] LR testified that when she was approximately 12 years old, the Accused showed her his cell phone that was displaying pictures and videos of people engaged in sexual acts, specifically penile vaginal intercourse. She said that this occurred on five occasions. On some of those occasions, LR’s sisters were also present.

On one of those occasions, the Accused asked LR if she “wanted to try it out” with him. LR said no because that was disgusting, and she was too young. The Accused told LR that it was not disgusting and that he wanted her to think about it. [ 79 ] The Accused denied that he showed any sexually explicit material to LR, and denied that he asked LR to have sex with him. [ 80 ] In addition to the bare denial, the Accused offered a potential explanation for why LR may have seen such material on his cell phone.

The Accused explained that on one occasion he was sitting in a chair near the stairs searching the internet for an oil that might be used for a sexually related purpose. It is possible that LR could have come down the stairs at the same time and seen him using the phone with sexually related material on the screen. [ 81 ] The Accused has no onus to provide this type of explanation which is, at best, mere speculation. Speculation cannot give rise to reasonable doubt. [ 82 ] I need to assess the Accused’s bare denial of showing sexually explicit material to LR.

This assessment must be done in the context of the whole of the evidence for the purpose of determining whether his evidence leaves me with reasonable doubt. [ 83 ] I have no basis on which to conclude that LR is not being truthful in relation to the sexually explicit material. As I earlier explained, I found LR to be a credible and a reliable witness. Despite this, I have reasonable doubt on Count 4 based upon two factors. [ 84 ] First, the lead detective testified that she sought and obtained a search warrant for the Accused’s phone, which she obtained and submitted to a technical analysist for data recovery.

The report she received back was that “nothing relevant found.” The lead detective has no technical expertise and was not able to provide the Court with any additional information in relation to the contents of the cell phone. I infer that the Accused’s phone was sent for data recovery to attempt to determine whether the storage on the phone contained any sexually explicit material or to identify websites that the Accused visited that might support the conclusion that sexually explicit material was accessed on the phone. The most reasonable inference is that police searched and did not locate any such evidence.

This gives rise to reasonable doubt as to whether sexually explicit material was on the Accused’s phone and, by extension, whether such material could have been shown to LR. [ 85 ] Second, LR testified that on some occasions the Accused showed her the explicit material when her sisters were present. IM testified that the Accused showed her photos or videos on his phone, but they were of “funny stuff,” pranks, news, or games. IM did not describe any sexually explicit material. This is inconsistent with the evidence of LR on a material issue.

Even though I have concerns regarding the reliability of IM’s evidence, this inconsistency gives rise to reasonable doubt. [ 86 ] For these reasons I find the Accused not guilty on Count 4. F. Count 8 – Assault with a Weapon [ 87 ] The Accused is charged with assault with a weapon contrary to s 267(

A) of the Criminal Code . This relates to an altercation that took place between the Accused and GR in the family home on November 15, 2020. [ 88 ] The background to this allegation is that by early November 2020 the Accused was suspicious regarding GR’s infidelity. The Accused suspected that GR was having an affair with one of her co-workers and reported the situation to GR’s employer. Arrangements were made for GR to attend a meeting with her employer on November 16, 2020 to discuss the situation. [ 89 ] The evening before the meeting was to take place the Accused and GR were in their bed talking about the situation. The

discussion became heated and turned physical. [ 90 ] GR testified that during this discussion the Accused hit her arm and then pushed her out of bed. The Accused came around the bed holding a construction drill and he began hitting her with the drill. She felt afraid that the Accused was going to kill her. [ 91 ] LR and IM were present as this was taking place. LR testified that she watched the Accused pick up a drill from an area where clothing was stored and use the drill to scratch GR on the back.

IM also saw the Accused grab GR and use a construction tool to strike GR. [ 92 ] GR, LR and IM all testified that after the alleged assault, the Accused dropped the drill, which permitted the three of them to escape to another bedroom where they barricaded the door. The Accused yelled from the other side of the door. [ 93 ] The Accused testified that he became frustrated and attempted to get out of the bed but was prevented from doing so because GR was holding his arm. To escape GR’s grip, the Accused pushed GR hard enough that she fell out of the bed.

The Accused acknowledges that he hit GR with his hand as he was pushing her. The Accused explained that after pushing GR off the bed, he has no memory of what transpired until later that evening. [ 94 ] The Accused acknowledged that he was angry and jealous and that he “lost it,” “lost control,” and “could not control himself.” [ 95 ] Even if I believed all the Accused’s evidence in relation to this incident, it would not give rise to reasonable doubt because he has no memory of the events after GR was pushed off the bed.

More specifically he has no memory of whether he did or did not strike GR with the drill. [ 96 ] When I consider the balance of the evidence on this point, I find that the Crown has proven beyond a reasonable doubt that after GR was on the bedroom floor, the Accused retrieved an electric construction drill that had been stored in the bedroom. I find that the Accused used the drill to strike GR in the back with sufficient force that it caused minor scratches to her back.

However, I conclude that the scar on GR’s back was a pre-existing injury and was not caused by this incident. [ 97 ] I find that GR did not consent to being struck by the drill and therefore I find the Accused guilty on Count 8, assault with a weapon. IV.

Conclusion [ 98 ] I find the Accused guilty of sexual interference on Counts 5 and 7 in relation to LR. [ 99 ] I find the Accused guilty of sexual assault on Counts 3 and 6 in relation to LR. [ 100 ] I find the Accused guilty of assault with a weapon on Count 8 in relation to GR. [ 101 ] I find the Accused not guilty of sexual assault and sexual interference on Counts 1 and 2 in relation to IM. [ 102 ] I find the Accused not guilty of making available sexually explicit materials on Count 4.

Heard from the 25 th day of May, 2023 to the 4 th day of June 2023 Dated at the City of Edmonton, Alberta thi s 15 th day of June 2023 John T. Henderson J.C.K.B.A. Appearances: J. Danker for the Crown G. Hammermeister for the Accused