R v TJG, 2023 ABCJ 273

The Alberta Court of Justice Citation: R v TJG, 2023 ABCJ 273 Date: 20231208 Docket: 210586103Y1 Registry: Calgary Between: His Majesty the King - and - TJG, born 2002, and a Young Person within the meaning of the Youth Criminal Justice Act, SC 2002, c 1 , as amended, at the time of the alleged offence Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , sections 110(1) and 111(1) . No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act .

No one may publish any information that may identify a child or Young Person as being a victim or witness in connection with an offence alleged to have been committed by a Young Person. NOTE: This judgment is intended to comply with the identification ban. Decision of the Honourable Ju stice R.J. O’Gorman Particulars [ 1 ] The Young Person, TJG (TJG or the young person), is charged with one criminal count, that on or about the 17 th day of September 2020, at or near Calgary, Alberta, TJG, did unlawfully commit a sexual assault upon the complainant, HR, contrary to s 271 of the Criminal Code of Canada ( CCC ).

[ 2 ] The trial started on March 29 th , 2022. HR testified from a remote witness room, and in the witness room was a support dog and the support dog’s handler. This was pursuant to s 486.1 and 486.2 of the CCC . The s 486.1 was previously consented to by the Defence. The s 486.2 was consented to by the Defence the night prior to the trial. [ 3 ] The Crown advised that they would be tendering a video statement by the complainant pursuant to s 715.1 of the CCC . The Crown also advised the Court that it was likely that the main issue at trial would be the matter of consent.

The Crown produced an Agreed Statement of Facts. The Agreed Statement of Facts 1.) On September 17 th , 2020, at approximately 8:00 PM the complainant met up with the young person to go for ice cream. The complainant was seventeen years old on this date. 2.) Later that evening an incident occurred which led the complainant to attend at the 2 nd District Office of the Calgary Police Service (CPS) on September 18 th , 2020, at approximately 9:30 PM. As a result, a police investigation commenced.

The continuity and integrity of all exhibits seized during the course of this investigation is admitted. 3.) At the direction of CPS , the complainant attended the Sheldon Chumir Medical Center in the morning of September 19 th , 2020, and Dr. Kathleen Reynolds conducted a sexual assault examination. Dr. Reynold’s expertise in the area of sexual assault examination, forensic evidence collection, and the

interpretation of injuries is admitted. Dr. Reynold’s curriculum vitae is admitted and can be marked as an exhibit on this proceeding. The medical records from the examination are admitted for the truth of their contents and can be marked as an exhibit in this proceeding. (The Defence states that this would not include any statements made by the complainant during the examination and the Crown agrees). 4.) On September 19 th , 2020, at approximately 8:10 PM police obtained the clothing worn by the complainant on September 17 th , 2020, including blue underwear she was wearing that night.

The clothing had not been washed or re-worn since September 17 th , 2020. 5.) Samples from the sexual assault examination and the underwear the complainant was wearing on September 17 th , 2020, were obtained by Calgary Police, and later sent for forensic analysis to the RCMP National Forensic Laboratory in Edmonton. It is admitted that nothing interfered with the integrity of the exhibits sent for testing from the samples seized from those exhibits such that it would affect the outcome of the analysis performed in the RCMP National Forensic Laboratory in any fashion.

It is also admitted that the analysis of the seized samples was preformed by an accredited RCMP laboratory using appropriate scientific DNA methods by properly trained laboratory technicians. 6.) Linda Rhodenizer’s (Forensic Science and Identification Services – Forensic Specialist/Reporting Services – Biology Services) qualification as an expert in the areas of

interpretation of evidence recovery search results as they pertain to the examination of exhibits for the presence of biological trace evidence, and the

interpretation, statistical analysis, and reporting of DNA typing results are admitted. Ms. Rhodenizer’s curriculum vitae can be marked as an exhibit in this proceeding. 7.) Ms. Rhodenizer tested the following exhibits obtained during the investigation: a. Used tampon (worn by the complainant at the time of the sexual assault examination); b. Vaginal swab 7-A obtained during the sexual assault examination; c. A swab from each of the complainant’s breasts (3-E and 3-

F) obtained during the sexual assault examination; d. The underwear worn by the complainant during the incident. 8.) Ms. Rhodenizer authored two reports detailing the results of the forensic DNA typing analysis dated February 8 th and May 6 th , 2021. Those reports are admitted for the truth of their contents and can be marked as exhibits in these proceedings. 9.) The presence of male DNA was located on the swab from the complainant’s left breast, swab 3-F, and on the upper front right area of her underwear.

On May 21 st , 2021, police obtained a judicially authorized warrant to obtain a sample of the young person’s DNA for the purpose of this investigation. 10.) After being arrested, chartered, and cautioned, a buckle sample of the young person’s DNA was taken as authorized by the previously obtained DNA warrant. The young person spoke to a lawyer before that sample was obtained. The young person’s DNA sample was sent for comparison to the RCMP Forensic Lab. On July 26, 2021, Ms.

Rhodenizer authored a report confirming that the male DNA located on the swab from the complainant’s left breast matched that of the young person. The report can be marked as an exhibit in this proceeding. 11.) Further DNA analysis was completed on the male DNA located on the complainant’s underwear. That analysis was completed by Jason Solinskic (Forensic Science and Identification Services – Forensic Specialist/Biology Reporting Scientist). His expertise in the area of the

interpretation of examination results of exhibits for the presence of human biological materials and the

interpretation and statistical significance of autosomal and YSTR DNA typing results and analysis is admitted. His curriculum vitae can be marked as an exhibit in this proceeding. 12.) Mr. Solinskic authored a report dated October 8 th , 2021, which confirmed that the male DNA located on the complainant’s underwear matched that of the young person. That report can be marked as an exhibit in this proceeding.

Evidence of the Complainant [ 4 ] The complainant testified to an incident that occurred on September 17 th , 2020. She confirmed that at the time of the incident she was 17 years of age. The complainant is now 19 years of age and is in an aviation flying school hoping to eventually become a commercial pilot. At the present time, she works as a receptionist and lives at home. In September 2020, the complainant had graduated from high school in June of that year.

At this point we entered into a voir dire under s 715.1 of the CCC . [ 5 ] The complainant confirmed that she was here today because of an incident that had happened on September 17 th , 2020. The complainant also confirmed speaking with Detective Dana Pearson of the Calgary Police Service in late September of 2020. The interview between Detective Pearson and the complainant had been videotaped and a transcript had also been made. The complainant stated that she had watched the video and read the transcript. The complainant identified a series of photographs that she had given the police during the interview.

This was referred to as a “Book of Photographs”. [ 6 ] The video was played in Court, and it was just under an hour in length. When asked if the events described in the video were true the complainant stated that they were true, although she wanted to clarify one detail. The young person had told the complainant about his so-called “girlfriend checklist”.

The complainant wanted to clarify that the young person first mentioned the checklist when they were at the Safeway parking lot in Aspen Landing. [ 7 ] On September 17 th , 2020, the complainant testified that she had met the young person on the top of the parkade, and she described it as a group hangout. The complainant then clarified that their initial meeting that night had been at the Cineplex parking lot in Westhills, Calgary, AB. Each party had their own vehicles and were talking between doors. The young person suggested that the complainant get in his car.

The complainant stated to the young person that he could come to her car. According to the complainant the young person did not want to come to her car, so she got in his car. The complainant had met the young person a couple of days earlier in a group hangout and she had stated that he was “super nice”. [ 8 ] The complainant was asked again if everything she had told Detective Pearson was accurate, except for the clarification on when the young person told her about his “checklist for a girlfriend”, the complainant testified yes.

That concluded the voir dire and without objection the video was marked as Exhibit 10 and the transcript was marked as Exhibit 11. [ 9 ] The complainant was asked about the incident and how she felt. According to the complainant she was numb and that she felt trapped and lonely. When asked if the sexual activity had been painful the complainant stated yes and testified that the young person had fingered her using a lot of force and that he had bitten her.

Nevertheless, the complainant stated that she did not express to the young person that the sexual activity was painful. [ 10 ] As to the Book of Photographs the complainant confirmed that she had taken the photos herself later that night on September 17 th , 2020. The first photo (001) is a photo of the bruise on the complainant’s neck. According to the complainant the bruise was as a result of the young person’s mouth sucking on her neck. The complainant stated that it was painful and took about a week to go away.

The complainant testified that the young person also grabbed her neck with his hand although she was unsure whether it was his left or right hand. The young person’s hand was on the complainant’s neck for about five seconds, and then he took the hand away on his own. [ 11 ] The second photo (002) was a picture of her lip that the young person had bitten. The complainant confirmed that the bite had been on the upper lip just below the nose and that the swelling had lasted for a couple of days. The complainant stated that the bite mark and the swelling had been a little painful.

The complainant testified that this photo had been taken late on the night of September 17 th , 2020. [ 12 ] The third photo (003) was another photo of the complainant’s neck and the bruise on it. This photo was taken a few days after the incident. The fourth photo (004) was a photo of the complainant’s breast with bruising in the shape of fingerprints around it. The complainant testified that the handprint on her breast was as a result of the young person excessively grabbing the breast. According to the complainant she had taken this photo about a week after the incident.

The complainant stated that she first noticed the bruising on her breast about three to four days after the incident and that it took about ten days for the bruising to go away. The complainant confirmed that the bruising on the breast had been painful. [ 13 ] The fifth photo (005) was a photo of the top of the complainant’s left breast. It was a photo of a hickey resulting from the young person sucking on the top of her breast. The complainant stated that this photo had been taken late on the night of September 17 th , 2020.

According to the complainant it took about a week for that hickey to go away, although it was not really painful. [ 14 ] The complainant was asked why she had decided to have a sexual assault examination done. The complainant stated that she thought it would be best to get some closure on the matter, and as well to hopefully prevent anything like this from happening to anyone else.

The complainant testified that she felt both violated and numb during the examination, and that when the doctor touched the inner thigh looking for the tampon it was painful. [ 15 ] The complainant stated that she had not realized that the tampon was still inside her since September 17 th , 2020. As to the pain in her groin area, she testified that it lasted for about a week and a half, and that for approximately four days it was a bit difficult for her to walk and to touch her groin as a result of the incident on September 17 th , 2020. [ 16 ] The complainant was asked how her head had ended up against the door.

According to the complainant, the young person just kept hurting her and used his body weight to get on top of her. The complainant was asked if she said anything to the young person when he put his fingers inside her vagina, and she said no. The complainant testified that she didn’t have a say anymore and that she was just existing there. At page 29 and 30 of the trial transcript for March 29 th , 2022, starting at line 30, the complainant is questioned as follows: Q. That night, the night of September 17 th , 2020, did (the young person) ever ask you if he could kiss you on any part of your body?

A. No. Q. Did he ever ask you if he could touch your breasts? A. No. Q. Did he ask you if he could take off any of your clothes? A. No. Q. Did you ask him or tell him to take off your --- off his clothes? A. No. Q. Did you ask him or tell him to take off your clothes? A. No. Q. Did (the young person) ask you if he could put his fingers inside your vagina? A. No. Q. Did he ask if he could put his penis inside your vagina? A. No. Q. Did he ejaculate inside your vagina? A. No. [ 17 ] The complainant was asked how the young person was able to put his penis into her vagina with her underwear still on.

According to the complainant, the young person used his finger to move her underwear over about an inch so that he was able to have access. The complainant stated that when this happened, she was on her back. [ 18 ] The complainant confirmed that the young person had asked her to put her hand on his penis. The complainant stated that she did agree to put her hand on his penis. At page 30 of the trial transcript for March 29, 2022, starting at line 34, the complainant is questioned as follows: Q. How did you agree? A.

I agreed in the sense that I didn’t believe there was really any other option to get it over with. Yeah. Q. Did you want to put your hand on his penis? A. No. [ 19 ] The complainant was asked about how the young person had then forced her to suck his penis. According to the complainant, the young person had asked her to suck his penis because he had just finished her, and it was now his turn. The complainant further confirmed that she did not want to perform oral sex on him and that she did not tell him in any way that she was agreeing to it.

At page 32 of the trial transcript for March 29, 2022, starting at line 2, the complainant was questioned as follows: Q. How were you feeling when he was, as you said, forcing him –forcing you to suck, how – how did that make you feel? A. That I had lost control, that I no – that I no longer had control of my body. Q. What stopped him forcing you to do this? A. When he had ejaculated in my mouth. Q. Okay. How did you feel once all of this sexual activity stopped and (the young person) got dressed? A. I was in shock for most part. I didn’t really understand what had happened let alone the severity of it. Q.

How were you feeling during the entire experience in the back of (the young person’

s) car? A. Scared. [ 20 ] The complainant was asked if she had told the young person to stop and she stated yes. The complainant specifically stated that she had told the young person that she was not going to have sex with him and that was not her intention. The complainant testified that she had told the young person to stop on more than one occasion. According to the complainant, the young person had initially said he would not want to have sex with her because they had just met. Nevertheless, the complainant stated that eventually the young person just ignored her and grabbed her face and started to kiss her.

Starting at page 32 of the trial transcript for March 29 th , 2022, starting at line 40 and continuing on page 41, the complainant is questioned as followed: Q. Did you consent to any sexual activity that you’ve described happened on September 17 th , 2020?

A. No. Q. Okay. Did (the young person) ever ask for your consent for any of that sexual activity? A. No. Q. Did you feel like you could stop (the young person) from forcing the sexual activity on you? A. No. [ 21 ] The complainant was asked the difference in size and strength between herself and the young person. According to the complainant she was approximately 135 pounds in weight, and she estimates the young person was approximately 180 pounds in weight.

The complainant stated that the young person had told her several times that he works out and that there was a significant strength difference between them. [ 22 ] Finally, the complainant is asked if she had any contact with the young person since the incident. According to the complainant, she has occasionally seen the young person at bars but there has been no contact. The complainant stated that when she has seen the young person at these bars, she has felt scared again. The complainant testified that as a result of the incident she has found it hard to trust people, especially guys.

The complainant stated that it has made her insecure about herself in a way. [ 23 ] Upon cross-examination by counsel for the young person, the complainant confirmed that she and the young person had exchanged contact information when they first met. The complainant and the young person had exchanged text messages and a meeting was arranged for the parking lot at the Cineplex in Westhills. The complainant agreed to get into the young person’s car. After going through the Tim Horton’s drive thru they went to the top level of the 69 th Street LRT parkade.

The complainant confirmed that she was looking at her music on her phone when the young person put his hand on her neck and started kissing her. The complainant admitted that she kissed the young person back. [ 24 ] The complainant was asked if she was surprised that the young person kissed her. The complainant stated that she was surprised by the aggression that he had. When the young person decided to move the car from the top of the parkade to a more private level, the complainant had previously stated that she felt “iffy”. The complainant was asked why she felt iffy.

The complainant stated that the inside of the parkade was more secluded. The complainant confirmed that some people go there to make out and stuff like that. The complainant agreed that she had consented to the young person going there anyway. [ 25 ] The complainant confirmed that the young person got in the back seat first and then asked the complainant to join him. The complainant further confirmed that she was not forced or pushed into the backseat. According to the complainant, the young person did not threaten to have sex with her, and she was not threatened by the young person.

While in the back seat the complainant and the young person continued kissing. At this point the young person bites the complainant on the lip. The complainant confirms that the young person does not hit her or smack her or pull her hair. Nevertheless, the complainant stated that the young person was kissing her roughly and grabbed her neck forcefully. [ 26 ] The complainant testified that the young person used a lot of force to grip her by the neck. Nevertheless, the complainant confirmed that at this stage the activity was still consensual.

Next the young person tried to put his hands down the complainant’s pants, and she pushed his hands away. The complainant confirmed that at this point the young person told her that she was turning him off. Nevertheless, they continued kissing, and the young person took the complainant’s jacket off. [ 27 ] The complainant was asked about the young person asking to return the favor.

The complainant is read her statement to Detective Pearson on September 28 th , 2020, at page 15 starting at line 14: And then he’d be like oh, you’re turning me off, you’re turning me off and he—so he kind of like he took my jean jacket off and then he was like, do you want me to return the favor? Like do you want me to take my shirt off? And, I said, like no, I don’t care. So, then he – he took it off, and then he took his pants off. [ 28 ] The complainant confirmed that at this point the young person was naked in the back of the car.

Although the complainant stated that this made her uncomfortable, she also confirmed that they continued kissing and it was consensual. As to the complainant’s head being against the door between the seat, she said the young person used his body weight to put her on her back. The complainant is read the statement given to Detective Pearson on September 28 th , 2020, at page 16 starting at line 5: And he—he just kept hurting me and my head was against the door and, like, in between the seat.

So, it was in, like, this crack and I like, I couldn’t really move as it is, but he took my pants off and then tried to stick his penis in me. And, that’s when I like pushed him off and said no,… [ 29 ] The complainant confirmed that she told the young person that she did not want to have his penis in her vagina and that she had said “no”. The complainant also confirmed that at this point the young person took her hand and had her rub his body including his penis. The complainant stated that the young person continued to place his own hands under her panties.

The complainant told the young person that she had a tampon inside, nevertheless, the young person kept touching her. The complainant is read her statement given to Detective Pearson on September 28 th , 2020, at page 17 starting at line 18: And I told him, like, stop, like there’s literally a tampon up there, that’s pretty gross. And he just kept going and then he kept asking me if I was there.

If I was finishing, whatever, and I – I said yes to get it over with because I knew it wouldn’t end until either him or we both finished, I guess. [ 30 ] The complainant confirmed that at this point she tells the young person that she is finished. The complainant testifies that the young person now claims it is his turn to have an orgasm. First, the young person has the complainant place her hand on his penis, and

then her head. The complainant is asked if the young person guided her head towards the young person’s penis. The complainant testified “no” and stated that the young person had grabbed the back of her head and that he was “forcing it”. The complainant confirmed that she did not fight back or tell the young person to stop. [ 31 ] The complainant testified that the oral sex and kissing continued for about ten minutes until the young person was finished. The complainant was asked if at this point, she was crying or screaming or anything, and she said no.

The complainant was also asked if she said anything to the young person to the effect that she was not okay with what just happened, and she said no. [ 32 ] The complainant confirmed that after getting dressed they left in the young person’s car and drove to the Aspen Landing parking lot. According to the complainant, they talked for approximately 15 minutes. The complainant believed it was the young person who suggested he drive her back to her car that was parked at the Cineplex at Westhills.

According to the complainant, the young person then suggested that they drive around in her car and that they could go somewhere. They both got into her car and drove to another parking lot across from Cineplex but still in Westhills. [ 33 ] The complainant is asked why she didn’t just tell the young person that she was going home and drop him off. The complainant testified that she was still scared as to what might happen next, that she was still in shock and numb.

The complainant is read her statement given to Detective Pearson on September 28 th , 2020, at page 24 starting at line 18: And then he said, let’s go back to Westhills and like you can drive somewhere now, and I got – like this was better than him being in control and him driving, so I said okay. We come back, Westhills, and we just – like he got in my car, and I know that any point I could kind of kick him out this time. [ 34 ] The complainant confirmed that while at the other parking lot in Westhills that they met mutual friends, or at least the complainant knew one girl and the young person knew another girl.

The complainant also confirmed that she didn’t tell the friend about what had happened but did shake her head when asked about the young person. The complainant stated she drove the young person back to his car and she drove home. [ 35 ] The complainant was asked how many times she had seen the young person since the incident. Specifically, the complainant was asked about a situation at a local Wendy’s drive thru where one of her friends blocked the young person’s car from being able to move. The complainant admitted that she did approach the young person with some of her friends, but she denied yelling at him.

The complainant was also asked about an altercation at a local bar where several of the complainant’s friends tried to beat up the young person. Supposedly, the young person was required to flee the bar with the assistance of security. The complainant stated that she did not see that take place. [ 36 ] The complainant was asked about her testimony that she did not consent to any sexual activity that evening. The complainant confirmed that kissing and “making out” would be considered as sexual activity.

The complainant testified that when they got into the back seat of his car, she told him that she was not going to have sex with him and he said, okay. The complainant stated that she again told the young person, no, when he put his penis in her vagina. The complainant confirmed that she had not said “no, no, no, the whole time”, that she had not been “dead quiet” the whole time, and that there had been regular “moaning” during the incident. [ 37 ] Finally, the complainant is asked about her testimony that the young person’s penis penetrated her vagina.

Specifically, the complainant is asked if the young person’s penis could have been rubbing on the outside of her vagina and around her vagina, but that the penis didn’t go all the way in. The complainant stated that would not be true. Evidence of Dr. Kathleen Anne Reynolds [ 38 ] On March 30 th , 2022, the next witness was Dr. Reynolds, whose expertise had already been confirmed and admitted in para 5 of the Agreed Statement of Facts. For clarity Dr. Reynolds was qualified as an expert in the area of sexual assault examination, forensic evidence collection and the

interpretation of injuries. Dr. Reynolds has been a family physician with the Calgary Sexual Response Team (CSART) since 2006. Dr. Reynolds has been with the Sexual and Reproductive Health Program since 2007. [ 39 ] Dr. Reynolds testified that she has probably conducted thousands of pelvic exams. Dr. Reynolds confirmed that CSART doctors are typically family and emergency physicians who have acquired their specialty through additional training. Specifically, Dr.

Reynolds stated she has attended training conferences in the United States of America (USA) and Canada as well as the Advanced Sexual Assault Forensic Medical course for physicians in Kansas City, USA in 2014. In April of this year, Dr. Reynolds stated that she would be attending a forensic sexual assault conference in California, USA. There is also a specially trained CSART nurse who is present during the course of an exam. [ 40 ] Dr. Reynolds explained how her role as a CSART doctor is different than her role as a physician for the Sexual and Reproductive Health Clinic. Dr.

Reynolds stated that as a CSART doctor she is involved in forensic evidence collection, including special techniques to examine the genital-anal area. [ 41 ] At this point, prior to commencing the Crown’s examination in chief of Dr. Reynolds, Defence counsel raises a concern about his client, the young person’s health. Throughout the morning, the young person had been coughing and had a runny nose. Under the circumstances it was decided that the young person should immediately seek medical attention, including a Covid-19 test, and that Dr. Reynolds would be excused for the day. Due to Dr.

Reynolds busy schedule, it was further decided that we would need to reschedule her testimony for another day, and the trial was stood down to the next day to pick a continuation date for the trial. Unfortunately, for a number of reasons, the trial did not reconvene until May 2023. [ 42 ] On May 31 st , 2023, Dr. Reynolds took the witness stand once again to give her testimony. Dr. Reynolds testified to the examination of the complainant that occurred on September 19 th , 2020. According to Dr.

Reynolds, the first step in the examination, after the consent form is signed, is a sexual assault history provided by the complainant. The sexual assault history takes approximately 45 minutes. After that, Dr. Reynolds describes the physical examination that takes approximately one hour, which includes an

examination from head to toe. Dr. Reynolds called it an invasive examination, looking for tenderness or bruising on the complainant’s body. The exam took place 40 hours after the incident. After the outside body examination, Dr. Reynolds stated that the next part of the exam is the genital examination. [ 43 ] According to Dr. Reynolds the first thing she does is examine the external genitalia, being the big lips and the little lips, which she explained are called the labia majora and the labia minora. Next the Doctor looks at the opening of the vagina for evidence of trauma. Dr.

Reynolds testified that she takes swabs for potential DNA. Next Dr. Reynolds stated she puts a little bit of dye at the bottom of the opening of the vagina to look for tears that she couldn’t see with the naked eye. The blue dye is called Toluidine Blue. [ 44 ] Dr. Reynolds stated that after combing the pubic hair, the next examination is to go inside the vagina. According to the Doctor she is looking for evidence of trauma inside of the vagina and the cervix. Dr. Reynolds testified that the physical exam can take anywhere from 30 minutes to 3 hours. Dr.

Reynolds confirmed that this was a standardized exam and that she went through this exam with the complainant. [ 45 ] According to Dr. Reynolds, the complainant had reported pain and visible markings in the vaginal area, the front of the neck, the chest and her right breast. The complainant had also stated that she had been strangled by the accused. Dr. Reynolds describes the injuries to the complainant’s face and neck that she had observed as including a 4-millimetre healing abrasion under the right nose. Surrounding the abrasion was an area of redness that was 5-millimetres by 2-millimetres.

The red area was non-tender to touch but the abrasion was tender to touch. [ 46 ] Dr. Reynolds next described her observations of the complainant’s back. On the top of the left side of the patient’s body, on the upper left chest, there was a 9 by 4-centimetre area of redness which was tender. On the complainant’s right side there was a 7- centimetre by 3-centimetre red tender area. Below the complainant’s left breast there was a 13-millimetre y 3-millimetre bruise and below that was another bruise which was 9-millimetres by 2-millimetres.

The distance between the two bruises was measured at 14- millimetres. [ 47 ] Dr. Reynolds testified that the complainant’s right breast was tender above the nipple. Continuing on the complainant’s body, Dr. Reynolds observed a scratch that was non-tender on the upper left leg that was 3-millimetre by 2-millimetre. There was also another scratch that was non-tender that was 4-millimetre by 2-millimetre. On the complainant’s waist there were several scratches. Starting at the top, Dr. Reynolds noted a 11-millimetre by 2-millimetre scratch that was non-tender.

Below was a 4-millimetre by 2-millimetre scratch that was non-tender. Below this was some faint redness, and below this was a 5-millimetre by 2-millimetre scratch that was non- tender. Then there was a final scratch that was 6-millimetre by 2-millimetre and it was non tender. [ 48 ] The results of Dr. Reynolds examination were contained in her report that was entered as Exhibit 3. The report was completed by Dr. Reynolds with the exception of page 20, which was filled out by Constable Hunter of the Calgary Police Service. [ 49 ] Dr.

Reynolds is asked about the occurrence of injuries during nonconsensual intercourse. Dr. Reynolds confirmed that there is no standardized test in existence anywhere in the world that can determine whether sexual activity is consensual based on the presence or absence of injury and that there is a considerable amount of medical literature on the subject. Dr. Reynolds explained that one of the issues is the lack of consistent terminology for things like “tears” and “tenderness” and it is a very subjective area. Therefore, it makes it very difficult to compare according to Dr.

Reynolds. [ 50 ] As to the complainant’s injuries that were observed during the medical examination, Dr. Reynolds testified that it would have been unlikely that those injuries would have occurred during consensual sexual intercourse unless there was an underlying medical reason. Nevertheless, Dr. Reynolds stated that injuries can occur during consensual sexual intercourse, although there are very few. Dr. Reynolds also stated that there is a high percentage (60 to 70 percent) of sexual assaults were there are no visible injuries. [ 51 ] Dr.

Reynolds was asked if the medical evidence was consistent with what the complainant had stated had happened to her. Dr. Reynolds testified that the four separate injuries to the complainant’s vagina plus the fact that the complainant had external injuries as well, it was unlikely to have been consensual. [ 52 ] Under cross-examination by counsel for the young person, Dr. Reynolds is asked if the complainant’s history and the information about the incident would influence the examination. Dr. Reynolds stated that her exam of the complainant was a clinical experience. Dr.

Reynolds explained that the complainant had a number of injuries, some large, that could be seen by the naked eye, and some, that were seen with the use of a special light and microscope used to magnify the visual inspection of the internal and external genitalia. [ 53 ] Dr. Reynolds was asked about the possibility that an injury could occur with the use of a tampon. Dr. Reynolds confirmed that the literature stated that such injuries are more likely in adolescents. Dr. Reynolds is asked about the issue of consent, and she states that consent is to be decided by the Court. Nevertheless, Dr.

Reynolds testified that four separate injuries in four areas of the vagina was not consistent with consensual sex. [ 54 ] Dr. Reynolds was asked if the insertion of the young person’s fingers into the complainant’s vagina while she had a tampon in could have caused an injury. Dr. Reynolds testified that an injury could not have happened that way because some of the injuries in the vagina were on the labia (outer lips). Evidence of the Young Person [ 55 ] The next and last witness to testify was the young person. According to the young person he first met the complainant on September 16 th , 2020.

They were with other friends hanging out at the parkade where he and the complainant were flirting. On September 18 th , 2020, he asked the complainant to meet, and they got together at the Cineplex parking lot at Westhills. The young person invited the complainant into his car and then drove to the LRT 69 th parkade.

[56] According to the young person they were flirting back and forth and started to make out. The young person testified that othercars started arriving, so he suggested to move the car to a different level. Once there, they got into the back seat of the car. According to the young person, the complainant told him “I am not having sex with you” (page 61, line 18, trial transcript for March 31st, 2023).Nevertheless, they again started making out again and that the complainant was on top of the young person.

The young person stated thatthe complainant was sexually moving her hips and that they were kissing passionately. [57] The young person testified that his penis became erect, and he stated that the complainant grabbed his penis through his pants.According to the young person, this is when he took his pants off. Next, the young person asked the complainant to give him a blow job.The young person stated that he ejaculated into her mouth. The young person then asked if he could return the favor.

The complainanttold the young person that she had a tampon inside, so the young person fingered the inside and outside of her vagina. [58] According to the young person the complainant seemed into it. The young person stated that the complainant told him shewas finished, and she was smiling at him. That is when they drove back to Westhills, the young person then got in the complainant’s carand together they drove to the Aspen Landing parking lot. There were some other friends there and then the complainant drove the youngperson back to his car at Westhills.

According to the young person, he had no indication that the complainant felt uncomfortable aboutthe evening. The young person testified that he thought the complainant was really into it. [59] About seven months after the incident the young person saw the complainant at a Wendy’s drive thru. According to theyoung person, one of the complainant’s friend boxed his car in and the complainant starting yelling at him, accusing him of sexualassault.

A couple of months after the Wendy’s incident, the young person stated that he was attacked by some of the complainants malefriends and that the bar security had to protect him. [60] In concluding, the young person testified that the complainant was smiling and moaning during the incident on September 18th, 2020. The young person stated that he never put the complaint’s head on his penis, that he never put his penis in her vagina, andthat she never said “stop”. [61] Under cross-examination from the Crown Prosecutor, the young person confirmed that this was the second time he had met the complainant.

When they were on the top of the LRT 69th parkade, the young person stated that other cars started to arrive, and hewanted to find a more secluded spot. According to the young person, he suggested that they move into the back seat because of theelbow rests. The young person testified that he wanted it to be natural, he wanted everything to flow naturally. [62] The young person confirmed that the complainant had said to him that she was not going to have sex with him (page 70, line 29-31, trial transcript for March 31st, 2023).

In the back seat there was more kissing, and the young person stated that he thought it wasmutual. The young person confirmed that he wanted more than just kissing. As to the suggestion that at one point the complainant hadpushed him off her, the young person testified that it didn’t happen. The young person stated that he had asked the complainant’spermission to kiss her breasts.

When asked what the exact words were that he used, the young person clarified that he actually said, “can I kiss your boobs?” (page 73, line 22, trial transcript for March 31st, 2023) The young person described the complainant as passionate.As to the suggestion he had put his penis in her vagina, the young person testified that was “absolutely incorrect”. The young personfurther stated that his penis may have rubbed up on her panties. [63] According to the young person it was the complainant who initiated the touching of his penis.

Then his pants came off, therewas a hand job and then a blow job, followed by the young person ejaculating. The young person stated that he then offered to return thefavor, but the complainant said she had a tampon in. As a result, the young person fingered the complainant. Next, the complainant’spants came off. According to the young person, the complainant asks the young person to help her take her pants off.

As to the blow job,the young person stated that he asked the complainant if she would do it and she said yes. [64] That concludes the evidentiary portion of the trial. [65] Hopefully the Supreme Court will further clarify the extent to which a court may rely on expert evidence in deciding whetheran injury was caused by non-consensual sexual activity in R.v Tsang. Legal Analysis and Assessing the Expert Evidence Respecting Injuries [66] Crown counsel had initially advised that the main issue in this trial would be the matter of consent.

The parties agree that theyoung person touched the complainant, and that the touching was sexual. The complainant testified that she did not consent, and theyoung person argued that he believed that the complainant consented. Therefore, the primary issue is whether the sexual activity wasconsensual and, if not, whether the young person had an honest but mistaken belief in communicated consent. The Crown’s caseincluded the expert evidence of Dr.

Reynolds who testified that the complainant’s injuries caused by the young person were likelycaused by non-consensual sexual activity. [67] A majority of the Supreme Court of Canada (SCC) recently summarized the legal framework of the sexual assault offence; Rv. GF, 2021 SCC 20 at para 25: The actus reus of sexual assault requires the Crown to establish three things: (

i) touching; (ii) of an objectively sexual nature; (iii) towhich the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, (SCC), [1987] 2 S.C.R. 293. The first twoelements are determined objectively, while the third element is subjective and determined by reference to the complainant’s internal stateof mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (

i) the accused intentionallytouched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to theabsence of consent: Ewanchuk, at para. 42. The accused’s perception of consent is examined as part of the mens rea, including thedefence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90.

[68] Whether the complainant consented to the sexual activity is a question of law. The meaning of consent is contained in theCriminal Code of Canada, RSC 1985, C-46 [Criminal Code]: 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272, and 273, the voluntaryagreement of the complainant to engage in the sexual activity in question. Consent

(1.1) Consent must be present at the time the sexual activityin question takes place. Question of Law

(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law. [69] In assessing credibility and reliability in a sexual assault trial and making credibility findings, the evidence must beconsidered in its entirety. Each part of the evidence is part of the whole, and those parts interact and inter-relate. Individual pieces ofevidence cannot be viewed in isolation (White v The King, 1947 CanLii (SCC) at para 271).

As Cory J observed in R v S (RD), (SCC) at para 128: It is, of course, true that the assessment of the credibility of a witness is more of an “art than a science”. The task of assessing credibilitycan be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. [70] In R v SGH, 2023 ABKB 39, at para 43 Justice Mandziuk stated: Assessing credibility and reasonable doubt cannot rely on myths and stereotypes, including generalizations about how human beingsbehave in certain situations. This is impermissible.

Such reasonings can undermine the fairness of the trial and distort the truth-findingprocess that is at the heart of the trial: R v ARD, 2017 ABCA 237 at paras 6 -9 (ARD), aff’d sub nom R v AJRD, 2018 SCC 6. In short,myths, stereotypes, preconceptions, and related irrelevant considerations must be strenuously avoided. Generalizations or others mattersthat are not in evidence play no

part in the credibility assessment process: S(RD) at paras 129-130. [71] In our case it is necessary to assess witness credibility and reliability due to the conflicting narratives of the accused and thecomplainant. [72] The young person testified in his own defense. The Court will engage the necessary analysis. The proper consideration andapplication of the formula proposed in R v W(D), (SCC), [1991] 1 SCR 742 (W(D)), is still referred to but perhapsmodified. [73] In R v Ryon, 2019 ABCA 36 (R v Ryon), Justice P. Martin provides an important and thorough review of some of the concernsthat have arisen if the W(

D) instruction is given without proper contextualization or elaboration. In other words, it is not sufficient for thetrial judge to simply recite verbatim and without modification the three-pronged W(

D) formula. Justice Martin suggests that at times theW(

D) instruction can be confusing and misleading, and he proposes it is time to revisit the instruction. At para 51 Justice Martin states: Then the charge should impart the following information: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence or disprove any of the evidence led by the Crown. (Subject to thecaveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent ofthe defence.) (ii) In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if theyare not confident, they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such asan objective component discussed at para 31). (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [74] In R v Ryon, Justice Martin found that on the critical issue, neither scenario provided by the complainant, or the accused wasobviously implausible. Describing the circumstances of the case to be unique, Justice Martin stated that it was incumbent on the trialjudge to consider and explain why the accused’s account was not true and did not raise even a reasonable doubt.

Simply stated, the trialjudge was expected to explain why he had decided to accept the complainant’s evidence and reject the accused evidence on the criticalissue of whether sexual intercourse had occurred. [75] As to the necessary test for resolving conflicting material evidence, Justice Martin confirms that a trial judge’s explanation foraccepting one version will implicitly and sufficiently explain why the opposing version is rejected and no more is required.

Reference ismade to R v M(Re), 2008 SCC 51, and at para 66 it states: Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for findingthe reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s

evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasonsfor accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimonyon specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where itconflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence wasrequired.

In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise areasonable doubt. [76] Also, in R v Ryon, Justice Watson provided his own Memorandum of Judgement concurring in the result of Justice Martinand Madam Justice Rowbotham. Mr. Justice Watson noted that the guidance in W(

D) was clarified in the decision of R v L(DO), (SCC), [1993] 4 SCR 419. Justice Watson noted the reasons given by L’Heureux – Dube J. At trial the defence had suggestedthat the appropriate test for assessing the credibility was whether an account given by, or on behalf of an accused might “reasonably betrue”. The trial judge did not agree with this position and explained: Whether an account given by, or on behalf of, an accused might reasonably be true, is not in my view the honest and proper andestablished test of whether the Crown's evidence should be rejected.

It is simply one factor in assessing the overall impact of theevidence as a whole. If one were to determine criminal cases simply on an academic test, unrelated to all the other facts, of whethersomething might reasonably be true, much of the impact of truly and compellingly credible Crown evidence such as that here, would gofor naught, and truth would be subjugated by plausibility. [77] Mr.

Justice Watson further noted that L’Heureux – Dube J. had agreed with the trial judge’s position and referred toO’Sullivan JA, who she stated had “succinctly enunciated” the test as follows (at p 317): The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, the Crown has proved itscase beyond a reasonable doubt. If it has, the accused must be convicted. If there is a reasonable doubt, the accused must be acquitted. [78] The burden is on the Crown to prove all these elements beyond a reasonable doubt (see R v. Shrivastava 2018 ABQB 998 atpara 54).

This burden is to be assessed by the trial judge and is to be based on all the evidence. [79] Whether the Crown has proven beyond a reasonable doubt that a complainant (who was capable of consent) consented turnson whether the Court, considering the totality of the evidence, is left with a reasonable doubt as to the complainant’s subjective consent(unless consent is vitiated). This determination is often highly dependent on the W(

D) analysis because of the nature of sexual assaultmatters. [80] On May 31, 2023, Dr. Reynolds had testified about the injuries she had noted on the complainant as a result of her physicalexamination. Dr. Reynolds was asked if she could form an opinion as to the nature of the sexual activity that resulted in those injuries. Atpage 23 of the trial transcript for May 31, 2023, starting at line 18 she stated: So, as I’ve already said, I can’t say whether a patient’s injuries are from non-consensual or consensual intercourse.

What I can say is thatshe had four – four genital injuries spanning across four genital areas, and she also had numerous extragenital or bodily injuries, and thatwould not be very likely to be seen with consensual intercourse, in my clinical experience. [81] Defence counsel had accepted Dr. Reynolds having “expertise and clinical experience” to give expert evidence on thesetopics.

Nevertheless, Defence counsel had taken issue with her final conclusion as contained in her medical letter, being the last twoparagraphs, which were: The presence of an injury does not mean that a sexual assault has occurred, as injury can occur in consensual intercourse. An expertwitness is unable to determine if genital injuries were the result of consensual versus non-consensual intercourse as consent remains anissue for the court to determine.

However, [the complainant] had 4 genital injuries spanning over 4 different genital areas, which makes it more likely that the injurieswere sustained in a non-consensual manner. It has been my experience and is supported in the sexual assault literature that injuries tomore than one site in the genital area as well as non-genital injuries (bodily) are more consistent with non-consensual sexual activity. [82] Defence counsel challenged Dr.

Reynolds conclusion as being contradictory and potentially misleading to the court as it wasoutside the expert’s qualified scope and essentially exceeded her boundaries in usurping the role of the Court. Defence counsel alsochallenged Dr. Reynold’s expert opinion that the injuries were more likely non-consensual than consensual because they were not basedon her first-hand experience, but on her personal opinion of the literature that exists regarding the

interpretation of genital injuries. Inwritten submission, Defence counsel argued: Dr. Reynolds conducted a quasi-legal socio-medical literature review, and proffers junk science to provide a conclusion that is really forthe Court to decide. The Court simply cannot permit this, and a miscarriage of justice will occur if the Court does so permit it. [83] The SCC recently heard an appeal from the British Columbia Court of Appeal, which addressed this very issue. Although adecision is pending, the analysis is very similar to the facts in our present case. The case is R. v.

Tsang, 2022 BCCA 345, and at paras105-112; the Court stated at length: It is true to say opinion evidence that injuries are inconsistent with consensual sex is admissible, but usually after more substantialconsideration of the expert’s experience and research and used cautiously. For example, in C.M.M., there was careful consideration ofthe expertise of the witness, described as follows: In preparation for his testimony, Dr. Doersam reviewed medical literature on consensual and non-consensual penetration injuries.

Heagreed that any opinion he could offer on consistencies between the type of injury sustained by S.F. and injuries attributable toconsensual or non-consensual penetration would be largely, although not entirely, based on that literature review. He also accepted thatthe authors of the material he reviewed admit the potential for flaws in their studies because of impacting variables, as well as differences

in

definitions of what constitutes an injury and differences in the investigative techniques used for the research. ... In light of this evidence, I fail to see how Dr. Doersam’s lack of forensic training or clinical experience specific to sexual assault complainants prevented his having the qualifications to opine on vaginal injuries that can arise from consensual or non-consensual intercourse. He is a gynaecological surgeon who performs pelvic examinations and repairs vaginal injuries, including ones reported to have arisen from penile penetration. ... Moreover, like Dr. Doersam, Dr.

Jurenka acknowledged that the medical literature has its weaknesses when comparing injuries in the consensual and non-consensual contexts. There are differences in investigative methodology, with a resulting inability to ensure that the research is “actually comparing apples to apples and so on”. Assuming for present purposes that the opinion was admissible, and doing so in part because, as the Crown points out, there was no objection to its admissibility and therefore no careful analysis of expertise of the sort undertaken in C.M.M., there is still a significant concern with respect to its probative value.

What does it mean to say the injuries observed could possibly have been caused by but were inconsistent with consensual sex? How did the judge deal with this evidence? Defence counsel was apparently content to end his cross-examination upon obtaining the witness’ concession that she was not an expert on injuries that might result from consensual rough sex, and the concession that it was possible there was consent to the activities that created the injuries she saw. The trial judge said: Dr.

Hirowatari did not rule out the remote possibility that the genital injuries the complainant received could have been caused by rough consensual sex. Dr. Hirowatari did not testify to a “remote possibility”. In her testimony in chief, she described the rift injury she saw, the most significant injury, as one that is “definitely not common to find with normal sexual activity” but common after childbirth. In cross-examination, she agreed with the simple proposition that it was possible the injuries she saw were caused by rough sex. Dr.

Hirowatari placed some emphasis upon the number and depth of the injuries found on examination. She did not address the complainant’s evidence that a bump on her head, a scratch on her hand and bruises to her arms and legs might have been sustained at the concert at BC Place before she went to the Commodore. The perceived inconsistency between the appellant’s evidence that the complainant expressed pleasure throughout the sexual encounter and the injuries sustained by the complainant clearly played a significant role in the rejection of the appellant’s evidence.

The extent of that inconsistency was apparently a matter beyond the expert’s opinion. The expert was qualified to express the opinion that the injury was consistent with non-consensual sex, as described by the complainant. Any further opinion was of limited value. In my view, an adverse conclusion with respect to the appellant’s evidence would not necessarily have resulted from consideration of the nature and extent of the complainant’s injuries alone.

That being the case, I cannot say the result would have been the same had the judge not placed some weight upon the unfounded generalizations identified by the appellant. [ 84 ] The British Columbia Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial. The SCC heard the appeal, alongside the appeal of R v Kruk, 2022 BCCA 18 , on May 18, 2023, and reserved its decision. As of December 7, 2023, the decision is outstanding. According to the factums of the Appellant and Respondent, one of the issues on appeal pertained to the Court of Appeal’s use of the expert evidence.

It is expected that the SCC will further clarify the extent to which a Court may rely on expert evidence in deciding whether an injury was caused by non-consensual sex. In any event, there are a number of prior Alberta and Ontario decisions that do speak to the issue. [ 85 ] In R v Threefingers , 2016 ABCA 225 (Threefingers) , the Alberta Court of Appeal set aside a sexual assault causing bodily harm conviction and ordered a new trial because the trial judge had erred in relying on evidence beyond the doctor expert witness’s expertise.

The expert doctor – who had been a member of the Red Deer Hospital sexual assault team and had conducted 65 sexual assault examinations – was qualified to opine on the “diagnosis, prognosis, and treatment of injuries to human beings,” yet opined that the complainant’s injuries were inconsistent with consensual sexual activity. The judge relied on that opinion and convicted the accused.

This opinion clearly overreached the scope of the expert’s area of expertise, and the judge therefore “improperly admitted [it] as a matter of law and ... erred in relying upon it.” This error was compounded by the judge’s use of the expert’s overreaching opinion to corroborate the complainant’s account of what happened (within the W(

D) analysis). [ 86 ] In R v BB , 2016 ABQB 657 (BB) , the Alberta Court of Queen’s Bench (as it then was) applied Threefingers to decide that the pediatrician expert witness – who had practiced for over 30 years and had been qualified to give expert evidence in sexual abuse cases on many prior occasions – exceeded her qualified expertise in “pediatrics and dermatology”: It may well be quite appropriate for an experienced pediatrician to give evidence about the physical characteristics of a girl’s hymen at various stages of development, the physical characteristics of a complainant’s hymen that were observed through a physical examination, and whether the atypical state of the hymen is consistent with certain potential causes.

However, in my view, she exceeded her expertise in opining on the likely cause, among other possible causes, of the state of the Complainant’s hymen in this case. [ 87 ] Crucially, the Court added that, even if the expert’s opinion of how the injury was likely caused had been within its scope of expertise, the Court would have given the causation opinion no weight because, in context, it constituted an opinion on “the ultimate issue before the Court,” which was for the judge, not the expert:

In any event, in opining on whether prior penetration was more likely to have caused the state of the hymen than a congenital condition,injury or self-inflicted penetration with an object, Dr Fiorillo referred, for example, to the reporting of sexual abuse as being a factor inconcluding that preceding penetration was the cause. To the extent that she did so, she gave an opinion on the ultimate issue before the Court, being the credibility of the Complainant, andthe extent to which that assessment bears on a determination of the cause of the condition of her hymen.

Even if her evidence on likelycause was not inadmissible as beyond her expertise, the Court would have attributed no weight to it. [88] The decision in BB exemplifies the judge’s role of safeguarding against ‘trial by expert.’ Questions of law are for the judge,not the expert.

An expert’s evidence as to the likely cause of a physical condition of an alleged sexual assault victim, if admissible,should be given no weight to the extent that it constitutes an opinion which ultimately decides the case on all the evidence. [89] In providing its expert opinion evidence, the expert may not give anecdotal evidence gathered from prior experiences inopining about conduct on a particular occasion; such evidence “lacks legal relevance and is [likely to cause] significant prejudice,especially when adduced to rebut a defence”, R v Shafia, 2016 ONCA 812 (Shafia), Similarly, as explained by Justice Doherty in R vKlymchuk , (ON CA) (Klymchuk) at para 46 and Justice Watt in Shafia at para 242, “statistical evidence ofprobabilities based on prior similar events, while useful in many disciplines, offers no admissible evidence as to what happened on aspecific occasion in a criminal trial,” and thus may not be used “to support a conclusion about what happened on the occasion that formsthe subject-matter of the charges.” [90] The scope of opinion evidence the expert witness is qualified to provide largely depends on the scope of the expert’squalification.

For example, an expert qualified in the “diagnosis, prognosis, and treatment of injuries to human beings” is unable to opineon whether a complainant’s injuries are inconsistent with consensual sexual activity (Threefingers, para 14, 66-68, and 72). Similarly, anexpert qualified in “pediatrics and dermatology” may be able to opine on whether the atypical state of a child patient’s hymen is“consistent with certain potential causes,” but is unable to opine on “the likely cause” of that atypical condition (BB, para 62).

Thedetermination of “likely cause” requires careful consideration of all the evidence by the Court; an expert’s “statistical evidence ofprobability based” on their “anecdotal experience” of “prior events” is no substitute for such careful consideration by the Court,regardless of expertise (see Shafia, para 243 and Klymchuk, para 46). [91] Dr. Reynolds did confirm that the issue of consent was for the Court to decide and not the expert witness. Dr. Reynolds didthough state that the complainant’s injuries were more likely to have been sustained in a non-consensual manner. Dr.

Reynold’s alsostated that the injuries were more consistent with non-consensual than consensual sexual activity. Although it is a fine line, it wouldappear that the description by Dr. Renolds that the injuries were “more consistent with non-consensual than consensual sexual activity”and her statement that the injuries were “more likely... sustained in a non-consensual manner”, are outside the expertise of Dr. Reynolds.In addition, the review of literature cannot broaden the scope of Dr. Reynolds expertise. Simply stated, the issue of consent is a questionof law, and is the responsibility of the Court.

Conclusion [92] The actus reus of the alleged offence is proven beyond a reasonable doubt. The parties agree – and the Court finds – that theyoung person voluntarily touched the complainant in sexual circumstances. The Court accepts the complainant’s evidence that she didnot consent to all of the sexual touching. Her evidence that she not consent was clear, consistent, believable, and unshaken on cross. [93] The mens rea of the alleged offence is proven beyond a reasonable doubt, and the defence of honest but mistaken belief incommunicated consent is not available.

There is no reasonable doubt that the young person was at least willfully blind to the absence ofthe complainant’s consent to at least some of the sexual acts. It is likely that the young person knew that the complainant did notconsent. The Court accepts the evidence that she said “no” multiple times during the sexual activity and rejects the young person’sevidence that he sought and obtained express verbal consent before progressing to each next stage of the sexual activity. The Court alsorejects the young person’s evidence that the complainant never said no and smiled during the sexual activity.

Even if the Court were toaccept that evidence, it would be insufficient to establish, in the totality of the evidence, the defence of honest but mistaken belief incommunicated consent. [94] The Court does not believe the evidence which would exculpate the accused nor have a reasonable doubt based on thatevidence, nor does the Court otherwise have a reasonable doubt based on the totality of the evidence. [95] The young person is guilty of sexually assaulting the complainant. The Crown has proven all the elements of the chargedoffence beyond a reasonable doubt.

The young person has failed to prove the defence of honest but mistaken belief in consent. [96] I accept the evidence of the complainant that while in the back seat of the young person’s car the complainant told the youngperson she did not want to have sex. I accept her evidence that the young person had bitten her on the lip, grabbed her by the neck, laidon top of her and forcefully put his penis in the complainant’s vagina, leaving bruises and scratches. I accept her evidence that he hadpenetrated her vaginally with both his fingers and penis.

I accept the complainant’s evidence that she pushed him off her and said no. Iaccept the complainant’s evidence that the young person did not at anytime ask for consent. [97] I believe that the Crown has proven all the essential elements to find the accused guilty as charged, and that I find that proofto be beyond a reasonable doubt. I find the accused guilty of the offence of sexual assault, as charged. Heard on the 29th day of March 2022, the 30th day of March 2022, and the 31st day of May 2023. Dated at the City of Calgary, Alberta this 8th day of December 2023.

R.J. O’Gorman Justice of the Provincial Court of Alberta Appearances: Mr. Wilson for the Crown Mr. Mahoney for the Young Person