R v CW, 2023 ABCJ 86

In the Alberta Court of Justice Citation: R v CW, 2023 ABCJ 86 Date: April 21, 2023 Docket: 211147475P1 Registry: Fort McMurray Between: His Majesty the King Crown - and - CW Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim or the witness must not be published, broadcast, or transmitted in any way.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 Ju stice J.J. Stuffco Introduction [ 1 ] The Defendant stands charged with one count of sexual assault against a single Complainant, BL, contrary to

section 271 of the Criminal Code of Canada . This offence was alleged to have occurred during the month of August, 2014. The Crown proceeded by way of Indictment. [ 2 ] The trial was heard on March 28, 2023 in Fort McMurray, Alberta whereby the Crown called one witness, the Complainant. The Defence did not call evidence. [ 3 ] Canadian law instructs triers of fact to always remember the Defendant enters the trial process with the presumption of innocence. That presumption never shifts. It is up to the Crown to prove each and every element of the offence beyond a reasonable doubt.

Should the Crown fail to prove any element beyond a reasonable doubt, the Defendant is entitled to the benefit of that doubt and

must be acquitted. [ 4 ] Since the only evidence before this Court was that of the Complainant, I must carefully weigh and consider each aspect of the Complainant’s testimony. Testimony of the Complainant [ 5 ] The Complainant and Defendant knew each other from high school. The parties were not well acquainted but had mutual friends. There was no issue with identification, jurisdiction, or date regarding the incident. [ 6 ] During August of 2014, a few weeks before embarking on her senior year in high school, the Complainant and Defendant met at a house party where alcohol and drugs were consumed.

Prior to attending a house party, the Complainant had been “partying” most of the day. While at this party, the Complainant brought “acid” to take with friends. The Complainant’s close friends warned her not to take acid because she had also been drinking. However, the Complainant testified the Defendant eventually encouraged her to take the acid despite her friend’s warnings.

It was not clear at what point in the evening the Complainant actually consumed the acid but it was prior to the alleged sexual assault. [ 7 ] Later in the evening, the Complainant, some of her friends, as well as the Defendant, relocated to the Complainant’s house to continue partying. The Complainant’s parents were not home. While back at her house, the Complainant began having “a bad trip” as she termed it, which caused her to hallucinate. Some of the Complainant’s hallucinations involved errantly believing the police were at the residence to arrest her for consuming illegal drugs.

She further hallucinated her parents called the police on her and wanted her removed from the house due to her drug intake. [ 8 ] Feeling unwell due to the hallucinations, the Complainant went to a bedroom where she found a friend. She asked for comfort and help from her friend but given her friend’s state of intoxication, all she received was a brief backrub. The Complainant described herself as having anxiety and a panic attack due to the “bad trip” of acid. She retreated to her own bedroom and tried to calm down.

She testified that closing her eyes caused her to hallucinate, while conversely keeping her eyes open stopped the hallucinations. [ 9 ] While the Complainant was in her bedroom, the Defendant came to check on her. She told the Defendant she was having a “bad trip” and he tried to console her. The Complainant testified the Defendant said something to the effect of “I’ll make it all go away” and given her state of intoxication, she believed him. The Defendant began to kiss and touch the Complainant, which eventually led to intercourse.

The Complainant testified the initial sexual contact was consensual. [ 10 ] However, as intercourse progressed, the Complainant became uncomfortable. The Complainant specifically remembers being in the sexual position she referred to as “doggie style” and it was at this point she wanted the Defendant to stop and expressed such to him. Despite the Complainant clearly telling the Defendant to stop, he kept going. The Complainant testified the Defendant was holding her hips in a way that caused her pain and the intercourse became painful and hurt.

The Complainant further believed that due to the Defendant’s state of intoxication, he could not ejaculate so likely was unable to finish, although this evidence was not fully explored nor clarified by either the Crown nor the Defence. The Complainant could not recall how long the sexual intercourse lasted. She testified that physically she felt disorientated, scared, and tired. [ 11 ] Eventually, the Defendant left the room.

The Complainant tried to sleep but closing her eyes only caused the hallucinations to reappear, so she left her room, went to the washroom to clean up, then joined her friends who were still up and about in the house. The Complainant and her friends then went to get food. [ 12 ] Subsequent to the incident, the Complainant testified she told her boyfriend about what transpired with the Defendant. She felt guilty because she had cheated on him.

Her boyfriend tried to persuade her to report the incident to the police but the Complainant felt guilty that she consumed acid prior to the incident so did not report it to the police. At some later time, the Complainant and the Defendant met up and discussed the incident. According to the Complainant, the Defendant confronted her about spreading rumours that he had raped her.

The Defendant told the Complainant to stop saying such things as from his perspective, “she wanted it.” The Complainant testified she did not wish to have any further arguments with the Defendant about the incident and simply resolve they had different views as to what happened that night. The Defendant believed it was consensual whereas the Complainant felt it was not. She agreed to disagree, so to speak. Furthermore, the Complainant testified during her discussion with the Defendant, the Defendant apologized and confirmed he would take the incident as a “learning moment” and promised never to do it again.

Given the Defendant’s promise to” never do it again,” the Complainant refrained from reporting the incident to the authorities. [ 13 ] A few years later, during some point in 2020, the Complainant became aware of another complaint of sexual assault against the Defendant. This time it was the Defendant’s estranged partner making a very public complaint against him, posting on Facebook that the Defendant had raped her. In fact, the Defendant’s estranged spouse even set her Facebook profile to publicly advertise she was “raped” by the Defendant.

The Complainant was “shocked and angered” that the Defendant broke his promise to “never do that again.” Without questioning the veracity of the social media post, the Complainant reached out to the Defendant’s estranged spouse on Facebook and initiated a discussion whereby the Complainant stated she would be happy to report her incident to the police if it helped bolster the Defendant’s estranged spouse’s complaint. The Complainant, either the same day or close thereafter to speaking with the Defendant’s estranged spouse over Facebook, then chose to report her complaint to the police.

The Law Essential Elements of Proof [ 14 ] Sexual assault is an assault that is committed in circumstances of a sexual nature such that the sexual integrity of the victim is

violated: R v Chase, (SCC) at para 11; R v Ewanchuk, (SCC) at para 24. [15] The actus reus of sexual assault requires proof beyond a reasonable doubt that: the Defendant touched the Complainant, thetouching was sexual in nature, and the Complainant did not consent to the touching (Ewanchuk at para 25). The mens rea has twocomponents: (

i) the intention to touch, and (ii) knowledge, or recklessness of, or wilful blindness towards lack of consent. Burden and Standard of Proof [16] The “Golden Thread” of Canada’s criminal law is the Defendant is presumed to be innocent. The presumption of innocence isconnected to the requirement for proof of guilt beyond a reasonable doubt, a fundamental principle of our criminal justice system. The Crown has the burden of proving each element of an offense. That burden of proof rests on the Crown throughout the trial. Thebenefit of any doubt must be extended to the accused: R v Lifchus, (SCC) at para 36.

Proof beyond a reasonable doubtis not proof to an absolute certainty, but it is proof to a high level of certainty. It is beyond proof of probable or likely guilt: In R v Starr,2000 SCC 40 at para 242 the Court stated: In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certaintythan to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolutecertainty is required, and that something more than probable guilt is required, in order for the jury to convict.

Both of these alternativestandards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubtstandard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning andappropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proofbeyond a reasonable doubt.

In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177: If standards of proof were marked on a measure, proof “beyond reasonable doubt” would lie much closer to “absolute certainty” than to“a balance of probabilities”. Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, inmy view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of nosignificance, but the idea itself must be conveyed....

Assessing Credibility [17] At its core, viva voce evidence requires an assessment on two fronts. In R v KC, 2023 ABPC 37 at paras 39, 40 and 41, theHonourable Judge S.P. Hinkley succinctly summarized this task as follows: First is credibility, the assessment of subjective factors including but not limited to the following: is the witness attempting to honestlyrecall the events in question? Is their testimony being coloured by animus or prejudice? Is the witness varying their role in the events tocast themselves in a more favourable light? Is the witness attempting to purposefully mislead?

Second is reliability, the assessment of objective factors including but not limited the following: was the witness in a good position toobserve the things they are testifying to? Did they have time to accurately observe and note the things they are testifying to? Is theirmemory of the events clear? Have they been consistent in their recollection of events in a prior recounting? Has the passage of timedulled or blurred their memory? Are there impairments to their ability to accurately recall the events, including the consumption ofintoxicants? Is there other evidence which corroborates their recall of the events?

Is their evidence objectively possible or logical as it ispresented? These factors taken together inform how much weight a trier of fact is to give the evidence before it. [18] Further guidance in assessing credibility was articulated by the Honourable Justice Mandziuk in R v SGH, 2023 ABKB 39 atparas 43, 44, 45, 46, 47, 48, 49 and 50: Witness credibility and reliability are the over-arching issues and challenges in this case. Credibility assessment is about witness' honestyand truthfulness. Reliability is about the accuracy of the witness' evidence.

A number of factors require careful consideration when assessing the credibility of a witness. The uniqueness of each witness and thefacts of each case must be weighed and evaluated carefully.

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. In making credibility findings, the evidence must be considered in its entirety. Each part of the evidence is part of the whole, and thoseparts interact and inter-relate.

Individual pieces of evidence cannot be viewed in isolation: White v The King, (SCC), [1947] SCR 268 at 271; Ewanchuk at paras 29 - 30. The factors that can be considered in assessing credibility include the witness's character, emotions and feelings, self-interest, hostility,attitude towards the accused, motive to lie, character for truthfulness and prior deceptive behavior. Additionally, evidence of bias ordishonesty and material facts that are proven through the testimony of other witnesses can weigh into the analysis: R v Tash, 2013ONCA 380at paras 40 - 43.

Inconsistencies in the particulars and the whole of the evidence are certainly an important consideration. Nosingle factor or group of factors is necessarily determinative, and any list of factors cannot be viewed as exhaustive. Additionally, the trier of fact's life experience and common sense can weigh into the process, which necessarily involves the trier offact's view of the evidence in all its diversity as it emerges during the trial, in tandem with their experience, logic, and intuition: R vMarquard, (SCC), [1993] 4 SCR 223 at para 49; S(RD) at para 129.

Assessing credibility and reasonable doubt cannot rely on myths and stereotypes, including generalizations about how human beingsbehave in certain situations. This is impermissible. Such reasoning 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 237at 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 other mattersthat are not in evidence play no

part in the credibility assessment process: S(RD) at paras 129 - 130. In R v JC, 2021 ONCA 131, (JC)the Ontario Court of Appeal explained that stereotypical thinking is not to be conflated with theapplication of logic or common sense. First, judges must avoid speculative reasoning that invokes common-sense assumptions or humanexperience that are not grounded in the evidence or appropriately supported by judicial notice (JC at para 58).

Second, factual findings,including determinations of credibility, cannot be based on stereotypical inferences about human behaviour; it is an error of law to drawinferences about how a complainant or accused is expected to act based on stereotypical inferences (JC at para 63). [19] To further amplify the vigilance required to avoid falling into myths and stereotypes in assessing credibility and reliabilitywithin the sexual assault legal framework, I also taken into consideration the Supreme Court of Canada’s direction in R v AG, 2000 SCC17 at paras 2, 3 and 4: This Court has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as they jeopardize thecourts' truth-finding function...

Our Court has rejected the notion that complainants in sexual assault cases have a higher tendency than other complainants to fabricatestories based on "ulterior motives" and are therefore less worthy of belief. Neither the law, nor judicial experience, nor social scienceresearch supports this generalization... Similarly, it is not the law that violations of sexual integrity of the type at issue in this case may be properly characterized as"horseplay"... Analysis [20] I listened carefully to the Complainant’s testimony. I found the Complainant tried to be honest and direct in relaying her owntruth.

She presented as a strong woman who spoke her truth. I find her credible with respect to her ability to relay her truth and her beliefas to what transpired.

[21] However, I have grave concerns regarding the Complainant’s reliability in this case. Through cross examination, internal andexternal inconsistencies became apparent: (

a) Initially, in her statement to police, the Complainant did not recall important details such as her body position or whether shewas held down by the Defendant during the sexual assault. However, at trial, many years later, she remembered it was “doggie style.” The Complainant testified her memory improved with time and through the help of counselling. This line of testimony was troublingbecause it defies common human experience that one’s memory improves with time.

It is also internally inconsistent as the Complainantgave her initial statement to police four years after the alleged incident and could not recall such details, yet after the expiration of threefurther years in 2023, her memory improved. (

b) The Complainant’s testimony regarding her hallucinations prior to and during the incident causes serious reliabilityconcerns. The Complainant testified to seeing and hearing things that did not actually happen that directly coincide with the allegedsexual assault. The Complainant’s hallucinations occurred while her eyes were open but did not when her eyes were closed. There was avoid of evidence regarding whether the Complainant’s eyes were open or closed during the alleged sexual assault.

I am at a loss at whichevidence to rely on as according to the Complainant, I cannot rely on things that may have transpired while her eyes were open becausesuch would have been tainted by hallucinations. (

c) The Complainant admitted she wanted to sleep with the Defendant because given the state she was in, she believed theDefendant that by having sexual intercourse with him, the hallucinations would go away. She believed it at the time but upon reflection,now realized it was “ridiculous.” This statement raises serious reliability red flags especially in conjunction with her other evidence thather memory of the incident has improved with time. I also find the Complainant’s testimony internally inconsistent and confusing.

Ondirect examination, the Complainant testified she initially agreed to sexual contact with the Defendant but later on revoked that consent.On cross examination, she admitted to telling police she “wanted” to sleep with the Defendant as she believed having sex with him couldstop the hallucinations and only upon reflection many years later realized it was ridiculous. (

d) The Complainant confessed to engaging in erratic behaviour in close proximity to the alleged incident. In fact, just one dayafter the alleged incident, she pulled a knife on an unwanted guest in her home. (

e) The Complainant blamed the Defendant for her drug intake saying he convinced her to consume the acid. However, oncross-examination, the Complainant admitted she was the one who actually brought the acid and was in possession of it and even offeredit to her friends at the party. I find her attempt to blame the Defendant for all the problems arising during the night in question to beproblematic. I also reject the Crown’s argument that the Complainant’s initial consent to the sexual intercourse was somehow vitiateddue to the Defendant’s fraudulent inducement upon her to consume acid.

Cross examination clearly brought forth evidence theComplainant not only brought the acid on her own initiative, but she consumed such on her own accord and free will. She also did nottestify she was so incapacitated that she could not consent. In fact, it was the opposite as the Complainant testified she could now recall,many years later, exactly what happened and how it happened. Upon reflection, she now realizes her consent was based on somethingthat was “ridiculous” although she believed it to be true at the time.

Viewing the evidence in its entirety, it appears the Complainant’sconsent could have been given for the incident at the time, but only after many years of self-reflection, she has now determined it wasnot. I am somewhat left in confusion as to whether, at the relevant time, the Complainant even subjectively did not consent. [22] However, even if I disregard the reliability concerns noted above, cross examination elicited evidence of animus striking atthe very core of the Complainant’s evidence.

Only on cross examination did the Complainant reluctantly admit she specifically told theDefendant’s estranged partner, “if you ever need me to give a statement to back up your case” she would do so. Most troubling is theComplainant communicated this almost simultaneously to going to the police herself. [23] Furthermore, the Complainant testified she was “shocked and angered” over the other “rape” allegations levied by theDefendant’s estranged partner.

Without any attempt to discern whether such allegation was true, the Complainant simply assumed so andused this as a reason to then report her own complaint to the police, despite having many years earlier, agreed to “let bygones bebygones.” [24] I specifically confirm there is no statute of limitations on reporting a sexual assault and I do not hold any adverse findingagainst the Complainant for reporting the incident many years later.

However, the evidence was very clear, and the Complainantconfirmed many times, that she did offer, more than once, to help the Defendant’s estranged partner by filing her own complainantagainst the Defendant. [25] The Complainant further testified that she went to police “because the defendant didn’t keep his word.” The delayedreporting timed exactly to coincide with assisting another complaint against the Defendant. This is cogent evidence of animus, and itstrikes at the core of the Complainant’s motives to report the incident to police.

Decision [26] A trial judge is entitled to draw reasonable inferences from the facts that are presented and doing so does not engage in myth-based reasoning: see R v Spicer, 2023 ONCA 232 at para 9. [27] The Complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence,including the Complainant’s conduct: see R v Ewanchuk, (SCC). [28] I am unable to reconcile the Complainant’s substantive reliability frailties and believe it is unsafe to convict the Defendant ofsexual assault under such circumstances.

[ 29 ] I also reject the Crown’s attempt to bolster the Complainant’s credibility by submitting her willingness to travel far distances to testify against the Defendant somehow makes her more believable. This is a dangerous and unfortunately increasingly common argument made in our courts. This type of submission falls squarely within the principles that govern the rule against oath-helping and should be avoided.

In R v TO , 2023 ONCA 222 the Ontario Court of Appeal confirmed at para 44: Applying the principles that govern the rule against oath-helping, the information that the complainant chose to travel to Ontario to give her evidence in person was not relevant to her credibility or reliability.

While it could indicate that she wanted to be in a more comfortable atmosphere when she testified, that does not speak to the truthfulness or accuracy of her testimony on either occasion, both being under oath. [ 30 ] As a trier of fact, I clearly cannot use the Complainant’s willingness to travel to court as a tool to assess credibility.

If I did so, I would be in error. [ 31 ] In conclusion, despite my finding the Complainant was doing her best to relay her truth, due to substantive and overarching concerns regarding her reliability, I find it unsafe to convict the Defendant under such circumstances. [ 32 ] Therefore, I find the Defendant not guilty. Heard on the 28 th day of March, 2023. Dated at Fort McMurray, Alberta this 21 st day of April 2023. J.J. Stuffco A Justice of the Alberta Court of Justice Appearances: N. Barney for the Crown G. Johnson for the Accused