R v GLG, 2023 ABCJ 168

In the Alberta Court of Justice Citation: R v GLG, 2023 ABCJ 168 Date: 20230724 Docket: 211098058P1 Registry: High Prairie Between: His Majesty the King Crown - and - GLG Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Assistant Chief Justice D.R. Shynkar Introduction [ 1 ] GLG was charged under sections 271 and 151 of the Criminal Code in relation to an alleged sexual assault on SG, then 9. The allegation was that he touched her vaginal area over her clothes. I heard the evidence of an RCMP officer, SG, and GLG, and viewed a

section 715.1 audio visual statement made by the child. Credibility is the central issue. Evidence of the Constable

[ 2 ] On October 11 th , 2021, the constable was dispatched to a “third party complaint” of a sexual assault, and she and another officer attended at a residence in Slave Lake. She spoke to SG, who made disclosures during an audio-recorded conversation. The constable determined that the disclosures merited a referral to a forensic investigator at the Zebra Centre in Edmonton, and she arranged for that. [ 3 ] The Zebra Center interview took place on November 5 th , 2021, and on November 8 th she arrested GLG.

She attempted to obtain a warned, cautioned statement, but was unsuccessful. [ 4 ] In cross examination, the constable was referred to a transcript of her audio-recorded conversation with SG which she was unaware existed.

She agreed that the transcript seemed accurate, and that SG said, “He tried to touch me somewhere,” “he tried to touch me ... here,” pointing to her vaginal area or in that direction, and “I can’t remember anything else.” [ 5 ] The constable also agreed with the clarifying questions and answers, “So he touched you over the top of your clothes,” and “yes.” That interview was conducted the day after the alleged incident, with the officer alone with the child while her mother was in another room. [ 6 ] In further cross examination, the constable agreed that her general report summarized the interview approximately as follows: “it happened in the hallway, mom not witness, between 21:00 and 23:00, GLG told [another child] to leave, GLG touched me here (pointing), over clothes, told to stop, told to shut up, GLG was drunk, nothing was inserted.” Defence counsel pointed out that “tried to touch” in the audio interview had become “touch” in her general report, and the constable appeared to agree with that, but repeated an earlier observation that what she conducted was an exploratory conversation rather than a formal interview.

Evidence of SG [ 7 ] SG appeared by video link from the vulnerable witness room, with a support person present with her. She promised to tell the truth when answering questions. She was in grade 4. [ 8 ] SG was asked if she recognized anyone in the courtroom, and if there was anyone she had seen before that day, and she responded negatively. GLG was beside his counsel, wearing a bright orange prison jump suit.

In initial conversation with SG, I had each of crown and defence stand, so that SG could confirm she could see them; later, crown and defence said they had viewed the setup in the vulnerable witness room and confirmed that both counsel tables were fully visible. [ 9 ] A video was played for SG and the court as proposed evidence under

section 715.1. She burst into tears on its commencement, and a break was necessary.

She said she remembered giving the statement, clearly recognizing herself in the video, and said (albeit in response to a leading question) that she was trying her best to be honest when she spoke in the video. [ 10 ] The video itself was clearly conducted by a forensic interviewer, and included a long introductory portion, in which it was explained to SG that they would only talk about true things, things seen, heard, or felt by her, and in which a good deal of time was spent having SG detail the minutiae of her activities and observations in relation to matters not relevant to the allegations.

SG’s ability to understand and respond to questions, to recall events, and to describe her experiences, was clearly demonstrated. [ 11 ] In the portion of the video in which SJ described the alleged offence, she said she and her brother were playing hide and seek in the dining room of her mother’s home, that her mother and siblings were watching tv in the living room, that GLG told her brother to go to the living room, that he touched her, that she thought he had been drinking because he was “acting and talking weird, talking funny,” “almost falling,” that he touched her “where she pees,” that “I was trying to go away but he wouldn’t let me,” that “he was standing in front of me and I couldn’t go somewhere,” that she ran to her mother to tell her she was being touched, and that she then sat in the living room, which her mother would not let GLG enter.

Counsel agreed that the video could be properly entered in evidence, as it satisfied the requirements for admissibility in

section 715.1. [ 12 ] SG was asked when she last saw GLG, and she did not know. When asked if she saw him in the courtroom, she said no. She said she didn’t really remember how he looks. [ 13 ] In cross examination, SG agreed that she had told the constable and her mother that GLG had tried to touch her. When asked if she understood the word, “tried,” she responded, “not really.” She agreed that GLG was stumbling, related to her earlier evidence of her believing he had been drinking. She responded, “I don’t know,” in relation to the apparent suggestion that his hand brushed her while he was falling to the floor.

Her answer was the same when asked if GLG’s hand was on her for a long time. [ 14 ] When asked if GLG had grabbed her where she pees, with an emphasis on “grabbed” and an accompanying abrupt motion demonstrated by defence counsel, she responded, “No.” She agreed that she told her mother that GLG had “tried” to touch her and told the interviewing officer at the Zebra Centre that he had “touched” her. Attempts to have her specify which was correct, as between “tried to touch” or “touch” resulted in SG again bursting into tears and being unable to continue.

Evidence of SG’s mother [ 15 ] While the crown had indicated an intention to call SG’s mother as a witness, the court was advised after the break following SG’s evidence that she would not be called. Evidence of GLG

[ 16 ] On the day in question, GLG was at a friend’s home. He received multiple text messages from his sister, SG’s mother, wanting prescription medication, Tylenol 3s. He told her he was busy, but she kept messaging him, and he “finally caved,” and told her he’d be there shortly. [ 17 ] He went to his mother’s residence, where he was living, because he had prescription medication there, and intended to use his own rather than buying it from someone else.

He couldn’t find it, and began “freaking out,” worried that “the kids” had taken them, in reference to SG and her siblings, who had earlier been playing in his room when he left. By that time, they were at his sister’s. [ 18 ] He went to his sister’s residence, where she was watching a movie with some of her other children. He asked her where the other children were, went to that room, and asked them if they took the medication. SG’s brother, the one referenced by her in her evidence as playing hide and seek with her, said they had not taken anything.

GLG believed him. [ 19 ] GLG told the kids, “I gotta go,” and went to the door. SG’s brother followed him to the door, and SG followed her brother. Her brother wanted to go with GLG, but GLG said he could not, because GLG was drinking. GLG told the children to be nice to their mom because she was having a hard time. He was intending to get medication from a friend, but for whatever reason did not, and did not return to his sister’s home. [ 20 ] GLG denied any untoward incident or argument with his sister on that occasion, or her asking him about anything.

He was arrested November 8 th , expressing shock and disbelief when learning of the allegations. He refused to give a statement on the advice of his lawyer. Asked directly about the allegations, he replied, “I am innocent, I would never do that to a child, she’s [the boy’s] sister.” [ 21 ] In cross examination, GLG acknowledged he had been drinking, and that his level of intoxication, on scale of 1 to 10 was 4 or 5. He was at his sister’s home 5-10 minutes, and did not talk to her while there, other than to ask where the kids were.

She was watching a movie with her other children and did not ask him about the thing she had messaged him about. [ 22 ] He said he had physical contact with SG’s brother, a kiss and hug goodbye, but denied physical contact with anyone else. SG was about 2 feet away at the time. [ 23 ] When asked in cross examination about other people with the same name, GLG responded (unexpectedly, one surmises) that he does have a cousin with the same first and last names.

However, the cousin lives in another community, and he could not say how often he is in Slave Lake or has contact with GLG’s sister. [ 24 ] GLG was not sure when he next spoke to his sister, but recalls taking all the children, including SG, out for Halloween with his father. In re-direct, he said he “knew there was an issue” the day after the alleged event, because his mother had told him. [ 25 ] In re-cross, GLG clarified that “issue” was an allegation that he had been touching SG, and that his mother had told him that his sister in Edmonton had phoned the police.

He could not understand why “somebody from Edmonton” would phone police, rather than his sister in Slave Lake, and was shocked and upset. He denied ever having a conversation with his sister about the allegation. Analysis [ 26 ] This is fundamentally a matter of credibility, both of GLG and SG. I find the evidence of the constable credible, but her credibility is not central to the issue here. [ 27 ] I assess the evidence of GLG on its own and in the context of the other evidence. He says no sexual touching occurred.

If I believe his evidence, I must acquit him; if I am not sure if I believe his evidence, I must acquit him, my then having a reasonable doubt as to whether the criminal act occurred. If I disbelieve him, rejecting his evidence, I must still be satisfied beyond a reasonable doubt by the available evidence that the criminal act occurred as alleged. [ 28 ] The versions of events described by GLG and SG are very different. There is not, for example, any clear nexus between the evidence of the two that would suggest the potential for SG misinterpreting a touch by GLG.

In that context, I am disinclined to give any weight to the apparent distinction between “trying to touch” and “touching.” It appears that neither the constable nor SG addressed their minds to that distinction until it was put to them in examination, and it is clear from their evidence that they used the phrase to indicate an attempt to touch in a sexual way that included actual touching. [ 29 ] The

section 715.1 statement was very carefully and patiently obtained and included no prompting to use “touched” rather than “tried to touch.” SG repeatedly and clearly described a touching of her vaginal area by GLG, and the exact context in which that occurred. There were no inconsistencies in that video statement. I do not find it surprising that at the end of an obviously trying afternoon, SG found it impossible to address the distinction between the two phrases, one of which describes a simple, physical action, and the other of which imports a need for some insight into the intention of SG in relation to his physical actions. Further, the

section 715.1 statement is of such detail and consistency, with the story elicited without leading questions, that I reject the possibility that SG’s evidence was affected by earlier discussions with her mother or the constable. [ 30 ] Defence counsel did not suggest that an adverse inference should be drawn from the crown not calling SG’s mother after indicating her presence at the courthouse and an intention to call her, and I am not inclined to draw such an inference. Her evidence may have been useful in the context of the different versions of events described by SG and GLG, but then again, it may not.

One might surmise that she chose to take her distraught daughter home, rather than leave her with the support person while the mother testified. In any event, I make no assumption about what her evidence might have been. [ 31 ] Likewise, I do not make anything of SG being tearful, needing breaks, and eventually being unable to continue. Notwithstanding the use of the vulnerable witness room, the proceedings were obviously stressful for her, and because this trial occurred after docket, it concluded late in the afternoon. At times SG declined a break, although she was clearly in tears, and expressed a

willingness to continue with the proceedings. I observed no attempt to be evasive or to fabricate evidence. [ 32 ] The constable noted that she understood her dispatch to have received “a third party complaint,” and tendered an apparently male name. She did not note the geographical source of the name. GLG understood the complaint had been made by his sister in Edmonton. There is no further evidence in that respect, and nothing to assist the court in a credibility assessment. [ 33 ] The evidence of GLG is problematic.

As the crown noted, it makes little sense that he would be pestered with messages from his sister with requests to obtain Tylenol for her, and then have no conversation of consequence with her about that very topic when he arrived at her home without it.

Neither does it make sense that between October 11 th , the day after the events, when his mother told him of the allegation, and November 8 th , the day of his arrest, he would make no effort to speak to his sister about that allegation. [ 34 ] The references to his sister’s demands for Tylenol, his concern for the children possibly having taken it from his room, his close relationship with SG’s brother, and his admonitions to the children to be good to their mother, appear as attempts to cast his sister in a poor light, for whatever reason, and himself in a good one. [ 35 ] The apparent inability of SG to recognize GLG in court is odd.

However, GLG’s evidence confirms that he was indeed present in the home of SG’s mother on the day in question, and that SG was there. I recognize also that SG’s evidence was that she did not really remember what GLG looked like on the day of trial. More importantly, I do not know whether she was familiar enough with court procedures and the setup of a courtroom to realize, when viewing a video stream of the courtroom, that the person sitting beside one of the men in suits (the lawyers) in an orange jumpsuit must be none other than GLG himself.

And of course, it would have been improper for the crown to point to GLG and ask, “Is this him,” while at the same time that kind of questioning was not expected of defence counsel. On all of the evidence, including the

section 715.1 statement, there is no doubt about identity here. [ 36 ] I will comment in passing that defence counsel’s cross examination of SG was appropriate, and as effective as it could be in the circumstances. There were no improper questions attempted, and for the most part, the form and delivery of the questions appropriately considered SG’s age and her discomfort with the proceedings. [ 37 ] I consider GLG’s evidence in the context of all the available evidence and conclude that I must reject it where it specifically conflicts with the evidence of SG in relation to the events in the home of SG’s mother.

Having so rejected GLG’s evidence, I consider the other evidence available, with significant emphasis on the

section 715.1 video statement, and conclude that the alleged offences have been proven beyond a reasonable doubt. The touching is clearly set out in SG’s evidence; the sexual intent is inescapably inferred from the location of the touch and the circumstances under which it occurred; all of the mundane elements of the offence, including jurisdiction, identity of GLG, and the approximate date of the offence, are also clear on the evidence; identity has been addressed in these comments, and any perceived issue there is insufficient to raise a reasonable doubt as to the identity of the perpetrator.

Result [ 38 ] There will be convictions on each count. One of those must be stayed, by application of the Kienapple principle, recognizing that there may only be one conviction in relation a single act affecting a single victim. The commonly accepted approach is to enter a conviction on the more serious offence, and a stay on the less serious offence, with the seriousness of the offences assessed by the minimum and maximum sentence specified by the Criminal Code , as observed by Justice Fraser in R v Dichrow , 2020 ABPC 224 , but I will hear from counsel before determining which count to stay.

Heard on the 19 th day of July, 2023, at the Town of Slave Lake, Alberta. Dated at the City of Grande Prairie, Alberta this 24 th day of July, 2023. D.R. Shynkar A Justice of the Alberta Court of Justice Appearances:

Eta-Ndu, S.M. for the Crown Abellera, E. S. for the Defence