R v SGH, 2023 ABKB 39

Court of King’s Bench of Alberta Citation: R v SGH, 2023 ABKB 39 Date: 20230123 Docket: 220025639Q1 Registry: Edmonton Between: His Majesty the King Crown - and - SGH Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. ______________________________________________________________________________ Decision of the Honourable Justice S.N. Mandziuk ______________________________________________________________________________

I. Introduction [ 1 ] SGH is charged with two counts of sexual interference (

Section 151 of the Criminal Code , RSC 1985, c C-46 ) and two counts of sexual assault (Section 271 of the Code ). [ 2 ] There is a single Complainant (AB). There are three alleged incidents. The first two incidents occurred when AB was 8 to 10 years old and the third incident, which led to these charges, occurred in July 2020 when AB was 12 years old. AB is presently 14 years old. [ 3 ] SGH denies the allegations. [ 4 ] With agreement of counsel, I summarized this Decision in open court; this filed written Decision was provided to counsel immediately thereafter. II. Facts A.

Background [ 5 ] The Accused, SGH, is married to PH. At all relevant times, SGH and PH lived in Edmonton, in a detached residential home. The three incidents are alleged to have occurred in that residence. [ 6 ] AB (the Complainant) is PH’s granddaughter and SGH’s step-granddaughter. [ 7 ] The material family relationships can be summarized as follows: (

a) CG is AB’s biological mother. (

b) BB is AB’s biological father. (

c) JB is the son of BB and CG and AB’s brother. He was 16 in July 2020, when the allegations were made. (

d) BB is married to SP. SP is AB’s stepmother. BB and SP had a child together who was a few weeks old in July 2020. (

e) SP is PH’s biological daughter and SGH’s stepdaughter. [ 8 ] AB, JB and this youngest child resided with BB and SP in the Drayton Valley area. [ 9 ] CG was living in Edson in July 2020. JB and AB saw CG every second weekend. The exchange of the children between the parents would occur in Entwistle, west of Edmonton. [ 10 ] On a regular basis, approximately 10 times a month, BB and SP dropped off AB, and sometimes JB, at SGH and PH’s residence. This happened in conjunction with BB and SP visiting Edmonton to attend appointments and do their shopping. B.

The Incidents [ 11 ] AB was the only Crown witness at trial. She also gave a statement to Detective Steve Hunt at the Zebra Centre (the Zebra interview) on July 23, 2020. That video recording was in evidence and was admitted under s 715.1 of the Code . [ 12 ] AB described three separate incidents. AB said during the Zebra interview that each of the incidents involved SGH touching her left breast with his hand and, on the third occasion, with his hand and mouth. i.

First Incident [ 13 ] AB was not sure exactly when the first incident occurred but postulated that it happened in approximately 2016-2018 when she was eight to ten years old. [ 14 ] AB was reading a book with SGH on the couch in the living room, which is located on the first floor of the house. PH and SP (AB’s stepmother) were in the kitchen, three to five steps away.

AB remembered that the book had a red cover and was about a prince saving a princess. [ 15 ] AB’s evidence is that SGH reached over her shoulder and put his hand down her shirt, touching one of her breasts, squeezing and caressing it for about 5 minutes. When SGH heard PH coming, he removed his hand. AB testified that she was too young to understand what happened or know whether it was wrong. ii. Second Incident [ 16 ] In 2018 or 2019, when AB was about 10 years old, she and SGH were in SGH’s home office, which is located in the basement of SGH and PH’s residence. [ 17 ] PH, BB (AB’s father) and SP were upstairs.

AB was sitting in a wheeled office chair showing SGH a music video on his

computer. SGH was standing behind the chair. AB testified that SGH put his hand down her shirt and touched the bare skin of her breastarea for the duration of the music video. [18] During the Zebra interview and examination-in-chief, AB said that she asked SGH to stop what he was doing; SGH complied.AB also said that SGH asked her if she liked it, and she said no, and he stopped. iii. Third Incident [19] On July 8, 2020, BB and SP were going to get baby pictures taken and dropped AB off at the house with SGH and PH.

Beforethey left for their appointment, there was a discussion about a recent school award that AB had received. SGH and PH decided to giveAB $300 toward her purchase of a Lego set that she wanted. AB began searching for the Lego set on her phone to show it to SGH andPH. SGH suggested that they look it up on his computer downstairs. [20] AB was looking at the Lego set on the computer. SGH went upstairs for about 10 minutes.

When he came back downstairs,AB was colouring and the computer was in a screensaver mode, which is engaged after approximately 10 minutes of inactivity. [21] SGH and AB decided to watch a movie. [22] In her Zebra interview, AB said that SGH was initially sitting on his black recliner chair and AB was sitting on the couch;however, AB could not see the movie from the couch. SGH offered to switch, and they did. SGH later moved to a white chair to see themovie better. [23] At some point during the movie, SGH told AB that he wanted to hold her.

He came behind the recliner chair, reached over,and touched her breast over her shirt. Then, he put his hands under her shirt and bra. To avoid him, AB went to the washroom, hopingwhen she came back, he would not continue. [24] When AB returned from the washroom, SGH got up from the white chair and continued touching AB’s breast under the shirtand bra from behind the recliner chair. Then, he came around the chair, got on his knees in front of AB, pulled her shirt down to exposeher breast, and put his mouth on it. He asked her if anyone else had done this before and whether she liked it; she said no.

SGH stopped.AB got up, went upstairs, got water, and came back downstairs to finish the movie. C. AB Discloses the Incidents [25] Two days after the third incident, on July 10, 2020, while SP was in a registry, AB was alone in the car with her brother, JB,waiting for her. JB had been commenting on the appearance of a female passerby, and this (according to AB) prompted AB to tell himabout the third incident. JB accused her of lying. [26] Later that day, there was a parenting exchange between CG and BB. CG was driving AB and JB to her home. JB told CGabout the conversation he had with AB.

When AB and CG were alone, AB told CG about the third incident. CG said that AB had to tellBB and SP when she returned to their care. [27] After returning from the weekend with CG, AB did not tell BB and SP but, on July 14, 2020, BB, after having been contactedby CG, told AB that CG wanted to talk to him about something. This prompted AB to tell BB and SP about all three incidents. [28] SP reported the allegations to Drayton Valley RCMP the same day, and they referred her to the Edmonton Police Service. III.

Law Related to Offences [29] Sexual assault is an assault that is committed in circumstances of a sexual nature such that the sexual integrity of the victim isviolated: R v Chase, (SCC), [1987] 2 SCR 293 (Chase) at para 11; R v Ewanchuk, (SCC), [1999] 1SCR 330 (Ewanchuk) at para 24. [30] The actus reus of sexual assault requires proof beyond a reasonable doubt that: the accused touched the complainant; thetouching was sexual in nature; and the complainant did not consent to the touching (Ewanchuk at para 25). [31] The question of consent is not an issue in this case.

AB was (and is) under 16 years of age. [32] To satisfy the mens rea requirement of sexual assault, the Crown must prove that SGH intended to sexually touch AB. [33] In order to secure a conviction on the sexual interference charge, the Crown must prove beyond a reasonable doubt that ABwas less than sixteen years old at the time of the alleged offence; SGH intentionally touched her, either directly or indirectly; and thetouching was for sexual purpose (R v Sears, (MB CA) at para 3). [34] The actus reus is a touching of a person under the age of 16.

The two mens rea elements are the intention to touch and thesexual purpose of the touching. IV. Burden and Standard of Proof [35] SGH is presumed to be innocent. The presumption of innocence is connected to the requirement for proof of guilt beyond areasonable doubt, a fundamental principle of our criminal justice system.

[36] The Crown has the burden of proving each element of an offense. That burden of proof rests on the Crown throughout thetrial. The benefit of any doubt must be extended to the accused: R v Lifchus, [1997] 2 SCR 320 (Lifchus) at para 36. [37] Proof beyond a reasonable doubt is not proof to an absolute certainty, but it is proof to a high level of certainty. It is beyondproof of probable or likely guilt: R v Starr, 2000 SCC 40 at para 242; Lifchus at para 32. [38] Reasonable doubt can arise from the evidence or from the absence of evidence.

It is grounded in reason and common sense,and determined without any basis in sympathy, prejudice, emotion, sentiment, leaps of logic, flights of imagination, or frivolousconsiderations: Lifchus at para 36. [39] SGH gave evidence at trial. Therefore, I must consider the Supreme Court of Canada’s direction in R v W(D), (SCC), [1991] 1 SCR 742 (W(D)) as interpreted by the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (Ryon) and R vAchuil, 2019 ABCA 299, leave to appeal dismissed (SCC). [40] These principles were helpfully summarized by Renke J in R v Hermkens, 2021 ABQB 1016 at para 12, as follows: (

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 …. (ii) In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit .... (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 ... other exculpatory evidence), they may not simply assume theCrown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether thatevidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or ... otherexculpatory evidence) cannot be taken as proof of the accused’s guilt. [41] Additionally, the Court in Ryon at para 47 held that whether evidence exculpating an accused raises a reasonable doubt mustbe assessed in the context of the evidence as a whole. [42] I will now turn to discuss the general principles of credibility assessment, myths and stereotypes and the particularconsiderations arising from the evidence of children. V. Credibility Assessment Generally [43] Witness credibility and reliability are the over-arching issues and challenges in this case.

Credibility assessment is aboutwitness’ honesty and truthfulness. Reliability is about the accuracy of the witness’ evidence. [44] A number of factors require careful consideration when assessing the credibility of a witness.

The uniqueness of each witnessand the facts of each case must be weighed and evaluated carefully. [45] As Cory J observed in R v S (RD), (SCC), [1997] 3 SCR 484 (S (RD)) 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. [46] In making credibility findings, the evidence must be considered in its entirety.

Each part of the evidence is part of the whole,and those parts 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. [47] 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 ofbias or dishonesty and material facts that are proven through the testimony of other witnesses can weigh into the analysis: R vTash, 2013 ONCA 380 at paras 40 – 43. Inconsistencies in the particulars and the whole of the evidence are certainly an importantconsideration.

No single factor or group of factors is necessarily determinative, and any list of factors cannot be viewed as exhaustive. [48] Additionally, the trier of fact’s life experience and common sense can weigh into the process, which necessarily involves thetrier of fact’s view of the evidence in all its diversity as it emerges during the trial, in tandem with their experience, logic, and intuition:R v Marquard, (SCC), [1993] 4 SCR 223 at para 49; S(RD) at para 129. VI.

Myths & Stereotypes [49] Assessing credibility and reasonable doubt cannot rely on myths and stereotypes, including generalizations about how humanbeings behave in certain situations. This is impermissible. Such reasoning can undermine the fairness of the trial and distort the truth-finding process 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 othermatters that are not in evidence play no

part in the credibility assessment process: S(RD) at paras 129 – 130.

[50] In R v JC, 2021 ONCA 131 (JC), the Ontario Court of Appeal explained that stereotypical thinking is not to be conflated withthe application of logic or common sense. First, judges must avoid speculative reasoning that invokes common-sense assumptions orhuman experience that are not grounded in the evidence or appropriately supported by judicial notice (JC at para 58).

Second, factualfindings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour; it is an error oflaw to draw inferences about how a complainant or accused is expected to act based on stereotypical inferences (JC at para 63). VII. Particular Considerations Arising From ChildWitnesses [51] In R v W (R), (SCC), [1992] 2 SCR 122 at 132 -133 (W(R)), the Supreme Court of Canada stated thefollowing regarding the evidence of children: The law affecting the evidence of children has undergone two major changes in recent years.

The first is removal of the notion, found atcommon law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with specialcaution…So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particularcase, it will have fallen into an error. The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrongto apply adult tests for credibility to the evidence of children.

One finds emerging a new sensitivity to the peculiar perspectives ofchildren. Since children may experience the world differently from adults, it is hardly surprising that details important to adults,like time and place, may be missing from their recollection. Wilson J. recognized this in R. v.

B. (G.), (SCC),[1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge’s treatment of the evidence of thecomplainant, she said that ... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with thetestimony of young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that thecourts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proofmust be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as acontradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think hisconcern is well founded and his comments entirely appropriate.

While children may not be able to recount precise details andcommunicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to themand who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oathtaking and corroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before thecourts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing thecredibility of young children. [emphasis added] [52] When dealing with the evidence of children, courts should not treat flaws and contradictions in a child’s testimony as havingthe same effect as they do in an adult’s testimony. Children perceive - and therefore describe - events differently from adults.

Courtsmust assess the flaws and inconsistencies in children’s evidence with this in mind. [53] The Supreme Court of Canada further expanded on the treatment of evidence of children in R v F (CC), (SCC), [1997] 3 SCR 1183 (FCC), specifically the effect of subsequent contradictory evidence of a complainant after adoption of theinitial video interview. At trial, the complainant, who was six during the offence and the video interview, adopted her video interviewduring her examination-in-chief. On a cross-examination, the complainant made statements which contradicted the video interview.

Forexample, she testified differently about clothing of the offender and whether he was awake at the time of the offence. It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more thanadults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The youngerthe child, the more pronounced will this be...

It is a common experience that anyone, and particularly children, will have a betterrecollection of events closer to their occurrence than he or she will later on. (See, e.g., Rhona Flin and J. R. Spencer, “Do ChildrenForget Faster?”, [1991] Crim.

L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the allegedoffence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later attrial. (FCC at para 19). [54] The Supreme Court of Canada warned courts at para 48: A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead toinconsistencies in her testimony.

Although the trier of fact must be wary of any evidence which has been contradicted, this is a matterwhich goes to the weight which should be attached to the videotape... [55] The Court further held at para 49 that the trial judge’s analysis of inconsistencies was reasonable: [The trial judge] applied the principles from B. (G.), supra, and W. (R.), supra, in holding that the minor inconsistencies regardingperipheral details were not of “great significance” and that they should not preclude her from relying on the videotaped statement as true.

Furthermore, she found that the complainant’s evidence-in-chief and cross-examination were consistent with the evidence she gave in hervideotaped statement with respect to the essential elements of the assault. VIII. Analysis

A. AB’s Testimony [ 56 ] AB’s testimony was reasonably consistent. She demonstrated maturity, spoke clearly about her experience, did not engage in an inappropriate accusatory behavior, and answered questions without apparent exaggeration. [ 57 ] However, AB’s has problematic elements that must be considered carefully. (

a) During the Zebra interview and her examination-in-chief, AB stated that that the first people that she told about the third incident were JB and CG. While not formally in evidence, CG states in her interview with Detective Hunt that AB told her that three people were made aware of the allegation: AB’s best friend, her brother, JB, and her biological mother, CG. When confronted with this inconsistency at trial, AB said that she probably meant that JB was her best friend. When questioned further, AB said that it was her actual best friend who she told only about the first incident at around the time when it happened and not the other incidents. (

b) AB during her initial cross-examination said that she was not covered in a blanket during the third incident, but after she was questioned further, she said that it was possible that she had the blanket on her as she used it on many other occasions. (

c) During AB’s examination-in-chief with respect to the third incident she stated that she did not see PH while she was in the basement with SGH watching the movie; in fact, she did not see PH until BB and SP returned to the house after their errands. On cross- examination, AB testified that she did not remember whether PH came downstairs to offer lunch. Her story changed. She then said that PH came downstairs a number of times and said that she went upstairs with SGH to eat lunch. Then, she said they ate downstairs. (

d) In the Zebra interview, AB testified that she was wearing the same purple shirt at the interview as the one she wore during the second incident. At trial, AB changed her answer and said that, while she was wearing a t-shirt, it was not necessarily that purple one. It appears that AB understood that it was unlikely to be the same shirt given that she had grown during the intervening time period; therefore, she changed her answer. [ 58 ] The Defence raised an issue with the fact that AB added more details in examination-in-chief and on cross-examination which were not mentioned in the Zebra interview.

The Zebra interview was under an hour, and most of the time was spent making AB comfortable with the interview. Detective Hunt asked broad questions and did not take an opportunity to ask many detailed questions. Therefore, it is expected that when AB was asked detailed questions during her in-chief and cross-examination, new additional details surfaced.

I do not take issue with this. [ 59 ] Bearing in mind the directions in the jurisprudence regarding evidence of children and evidence of events that occurred when a witness was a child, it is conceivable that the inconsistencies arise from confusion, the passage of time, genuine mistake or perhaps other factors. The inconsistencies do not invariably ground a conclusion that AB was untruthful. B. SGH’s Testimony [ 60 ] SGH gave exculpatory evidence. He denied any sexual contact with AB, at any time, in any way. [ 61 ] I found SGH’s exculpatory evidence to be forthright and consistent.

He was not shaken or impeached during cross- examination. His display of emotions was appropriate and understandable, and appeared genuine. SGH refrained from lashing out, or behaving in an accusatory fashion; rather, he highlighted the catastrophic personal consequences that have accrued to him as a result of these charges. [ 62 ] SGH concurred with AB’s evidence that the two of them had a close relationship. He had known her since BB and SP began dating when AB was seven years old. He taught AB to read, they played games together on many occasions, watched movies and had nicknames for each other.

AB spent a great deal of time in his home. [ 63 ] SGH made several statements in his testimony that might have invited him to downplay or embellish. For example, SGH acknowledged many occasions where he and AB were alone together. He was candid about not treating AB as a granddaughter in the same way he treated his other grandchildren. He explained this as arising from only having known AB from when she was 7 years old (rather than from birth), and that AB had other sets of grandparents. [ 64 ] SGH had a clear memory of the events of July 8, 2020.

He explained his clear memory because it was the last time that he saw AB, BB, SP and the new baby. Further, his biological son was to be married in a few days in SGH’s yard. As well, the allegations against SGH became known that same week. In my view, it is reasonable that SGH would have reflected on and considered the events and have a reliable memory concerning them. [ 65 ] SGH testified that on July 8, 2020 he was downstairs with AB initially searching Lego on his computer. They ended up watching a movie, and AB sat in the recliner after moving there from a couch.

PH came downstairs several times to see if they needed anything. She brought sandwiches for lunch. While they were watching the second movie, BB and SP had returned and SGH went upstairs, AB following thereafter where she, according to SGH, sat next to him while he held the baby. [ 66 ] SGH candidly acknowledged that he made an unusual exception on July 8, 2020 in allowing AB to use his computer. He confirmed that he left the office for 10 minutes allowing AB to use his computer without his direct supervision.

While AB had testified that she had used it on another occasion (the second incident) to watch a music video, SGH testified that July 8, 2020 was the first and only time that AB used his computer. [ 67 ] This latter point is significant. SGH’s evidence is that he has highly sensitive information on his computer, related to his volunteer work as an advocate for individuals who are seeking benefits related to medical issues arising from their employment. On the surface, it would seem preposterous that SGH would leave a child of approximately 10 years of age alone with the computer.

However, SGH explained that he knew he was only going to leave the room for a few minutes. He trusted AB given their close relationship, and

she was occupied looking at the Lego set online when he left. While it was perhaps unnecessarily risky to leave AB alone, I acceptSGH’s explanation. [68] The evidence is that SGH has chronic back and knee issues that make it difficult for him to get up from a seated or kneelingposition.

While these health problems slow SGH down, they do not make it impossible for him to sit or kneel but this evidence renders itsomewhat unlikely that SGH would kneel while touching AB sexually, for some period of time, in a location that can be easily viewedfrom the top of the stairs: he could not easily change his position if someone else in the house came down the stairs. There are three stepsto a landing, and then the stairs to the basement. From the top of the stairs to the basement and on descent the evidence is that a personcould see the back and left side of the recliner.

According to SGH, PH was up and down the stairs more than once, in fact a number oftimes; I accept this evidence. Simply put, it is unlikely that SGH would have been able to get up quickly enough from his knees in timeto not be seen by PH if she was descending the stairs at the time of the assault. [69] Additionally, SGH has hearing problems for which he wears hearing aids.

SGH testified that he did not wear his hearing aidsat home on the day of the third incident; on the evidence at trial, he would not have heard someone coming down the stairs. [70] The Defence argues that the incidents were unlikely to happen because the risk of SGH being caught was extremely high,especially during the first incident: other family members were just a few steps away. In general, I reject this argument. Courtscontinuously see the brazenness or opportunism of offenders including in cases of sexual assaults of minors (see R v BW, (ON SC); R v H (TR), (ON CA)).

For example, the offender in R v FC, 2018 ONSC 561 (FC)assaulted his stepdaughter in what court found to be a brazen manner (at para 6): Once again, the facts surrounding the sexual assault on G.L. were brazen. The assault occurred in a home occupied by F.C. and his wife,L.C., who ran a daycare centre. F.C. enticed G.L. up to a bedroom on an upper floor of the home, where he spread peanut butter on hervagina and proceeded to lick it off. He then took a bath with her in the nude and cleaned the peanut butter off her vagina. G.L. was fiveyears of age. FC was convicted of two additional offences.

All offences happened in close proximity to family members or members of the public (seeFC at para 93). [71] Brazenness by itself does not raise a reasonable doubt. [72] With respect to the second incident, I accept SGH’s evidence that AB was on his computer for the first time on July 8, 2020.That conclusion is grounded, in my view, in the totality of the evidence with respect to all three alleged incidents. [73] The evidence, when considered in context and as a whole - the proximity of others to the location of the alleged offences, thegeneral layout of the house, SGH’s physical limitations including hearing issues - and viewed logically in light of SGH’s credible andreliable testimony, constitutes believable exculpatory evidence that raises a reasonable doubt with respect to all three alleged incidents.

C. Other Evidence [74] The Defence theorized that AB told an initial lie to her brother, who then told her mother, forcing AB to begin a trail of liesthat culminated in her trial evidence. The Defence noted the evidence that AB laughed when she told her brother. AB was motivated toadd an additional two lies after the initial lie to give legitimacy to her story. [75] First, I decline to speculate on AB’s motives. As stated in JC, judges generally must avoid speculative reasoning whenassessing evidence.

See also R v Lunz, 2013 ABQB 150 at para 62. [76] Second, as held in JC, it would an error of law for me to draw inferences from the fact that AB laughed when telling herbrother about the third incident. I cannot conclude that a typical child sexual assault victim would not have had the same reaction (ARD)or that this has any particular relevance or meaning to the issues in this trial. D. Selective and Delayed Disclosure [77] The Defence suggested that AB’s selective disclosure demonstrates that her evidence is not credible.

However, as establishedin R v DP, 2017 ONCA 263 (DP) relying on R v DD, 2000 SCC 43 (DD), [2000] 2 SCR 275, selective and delayed disclosure does notimpact AB’s credibility. In DP at para 30, the Court emphasized that disclosure of sexual assaults can be very painful for victims;therefore, it is not surprising if there is piecemeal disclosure that happens over a period of time. The Court in DP also held that there isno fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. [78] I accept AB’s explanation for her delayed and selective disclosure – it is plausible.

First, regarding AB’s initial disclosure toher brother, JB, AB told him about the most recent incident, which he did not believe. It makes sense that she did not feel comfortabledisclosing other incidents to him. Second, regarding AB’s disclosure to her biological mother, AB explained that her relationship withCG has been strained for years, with trust issues. This is a plausible explanation for why AB did not feel comfortable disclosing all threeincidents at once.

AB disclosed all incidents to BB and SP, the two parental figures with whom she lives full time. [79] I conclude that AB’s delayed and selective disclosure does not affect her credibility. E. Absence of Evidence [80]

Section 274 of the Code codifies the principle that corroboration is not required for certain offences: 274 If an accused is charged with an offence under

section

151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, no corroboration is required for a convictionand the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration. [emphasis added] [81] The Supreme Court of Canada in W(

R) at 132 and R v AG, 2000 SCC 17 at para 30 confirmed that there is norequirement of corroboration for a child’s evidence. [82] During argument, the Defence urged consideration of the absence of forensic evidence. SP provided Detective Hunt with a t-shirt that AB wore on July 8, 2020 saying that it had not been washed.

Detective Hunt told SP that the shirt would be sent for DNAtesting, but the results of testing, if any, are not in evidence. [83] While an absence of evidence is a consideration in any reasonable doubt assessment, in this case, I refrain from engaging inspeculation concerning the lack of DNA testing. [84] The Defence also argues that the absence of any evidence from PH, who was in the house during all three alleged incidents, isproblematic. The police did not interview her, and she did not testify at trial. Again, I refrain from engaging in speculation regarding whythe police did not interview PH.

The Crown has a wide discretion and can choose which witnesses to call; there is no obligation to call aspecific witness (R v Cook, (SCC), [1997] 1 SCR 1113 at paras 36, 39). While there is case law allowing the Court todraw adverse inferences in certain situations where the Crown fails to call a key witness (R v Michel, 2007 NWTCA 3 ; R vTrakas, 2008 ONCA 410), I will not draw any conclusions or inferences of that sort here as it would lead me into speculation. IX. Conclusion [85] I have carefully considered all evidence. [86] On the totality of the evidence, I accept the exculpatory evidence of SGH.

It is believable in the context of the evidence as awhole. Thus, I have a reasonable doubt. [87] I find SGH not guilty of the charges against him. [88] SGH is acquitted of all charges in the Indictment. Heard on the 5th through 7th days of December, 2022. Dated at the City of Edmonton, Alberta this 23 day of January, 2023. S.N. Mandziuk J.C.K.B.A. Appearances: Keith Nicholls for the Crown Shawn Gerstel for SGH