R v Player, 2024 ABCA 10

In the Court of Appeal of Alberta Citation: R v Player , 2024 ABCA 10 Date: 20240112 Docket: 2203-0172A Registry: Edmonton Between: His Majesty the King Respondent - and - Mike Player Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim, HF, must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ The Court: The Honourable Justice Kevin Feehan The Honourable Justice Anne Kirker The Honourable Justice Alice Woolley

_______________________________________________________ Memorandum of Judgment Appeal from the Conviction by The Honourable Justice S.J. Bercov Dated the 26 th day of November, 2021 ( Docket: 201137080Q1) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Introduction [ 1 ] Mr. Player was found guilty of sexual assault and sexual interference by a jury.

He appeals his convictions on grounds that irrelevant evidence was admitted to his prejudice and that the trial judge erred in directing the jury to continue to deliberate after they made a request to review the complainant’s video recorded statements. [ 2 ] We are unanimous in concluding the appeal should be dismissed. Background [ 3 ] The complainant is the daughter of the appellant’s common law partner. The criminal conduct took place while the complainant was between 13 and 15 years old.

In her evidence, she described how she participated in play fighting and pinching games with the appellant and how, as she got older, the appellant began to touch her “in more inappropriate ways and locations like private areas or maybe get closer to [her] private areas” which made her feel uncomfortable and was something she “didn’t want to” do. The complainant described the appellant discussing sexual topics with her, telling her about “purple nurples” (associated with nipple pinching), flashing his penis, and laying on top of her.

The complainant testified about how she and the appellant kissed on the lips, saying that she remembered “kisses being forced upon [her] in certain setting[s] ... but ... also ... asking ... to be kissed as well, because it was made normal, and [she] thought that that was the way to give affection.” She also described her mother and the appellant kissing, hugging, and touching each other over their clothing in her presence, sometimes joking around to make her uncomfortable. [ 4 ] It was the appellant’s position that no intentional touching of an objectively sexual nature (for sexual assault under s. 271 of the Criminal Code ) or for a sexual purpose (for sexual interference under s. 151 of the Criminal Code ) occurred.

Through counsel, he argued that the totality of the evidence should leave the jury with a reasonable doubt about whether the complainant had lied “by omission”, leaving out proper context for the purpose of mischaracterizing accidental or innocuous physical contact. Did the Trial Judge Err in Admitting Irrelevant Evidence?

[5] Given the issue about whether the appellant directly or indirectly touched the complainant for a sexual purpose, therespondent was entitled to lead evidence from which a sexual purpose could be inferred: R v Gallie, 2015 NSCA 50 at para 49. It is notdisputed this could include evidence of “grooming” the complainant to participate in the prohibited conduct.

The appellant’s centralcontention under this ground of appeal is that the evidence about physical displays of affection between the appellant and thecomplainant’s mother had no probative value with respect to the question of “grooming” and should not have been admitted because“there was no connection between the allegations and the affection shown between the adults in the home.” In essence, he argues, theevidence fell outside what can legally be defined as “grooming”.

However, as recently noted by the Supreme Court of Canada in R vBertrand Marchand, 2023 SCC 26 at para 51, “[t]he jurisprudence has yet to identify a universal definition of grooming.Understandably, this is in large part due to the difficulties in determining where the process begins and ends, as well as the variety ofbehaviours that may be involved depending on the offender, the victim, and the context.” At trial, the appellant argued that the probativevalue of the “very low level over the clothing touching” between the appellant and the complainant’s mother was “very tenuous ... low”and outweighed by the prejudicial possibility the jury would infer the appellant was of bad character or “translate [his] romantic orsexual interest toward his own partner, an adult, into evidence that he was interested in a child.” On this basis, the appellant argued theevidence should be excluded.

The trial judge disagreed and exercised her discretion to admit it. Her decision in this respect is entitled todeference: R v Schneider, 2022 SCC 34 at para 62, citing R v Araya, 2015 SCC 11 at para 31 and R v Shearing, 2002 SCC 58 at para 73. [6] The probative value of a particular piece of evidence depends on the context in which it is proffered: Araya at para 31. Therelevance threshold for admissibility is low: Schneider at para 39; see also, R v Arp, (SCC), [1998] 3 SCR 339 at para38, 166 DLR (4th) 296.

In deciding to admit the evidence in question in this case, the trial judge made no error in principle that justifiesthis Court’s intervention. Did the Trial Judge Err in Directing the Jury? [7] The trial judge did not commit a reviewable error in dealing with the jury’s request to review the complainant’s videorecorded statements. “There is no authority that obliges a trial judge to direct the jury to cease its deliberations where a request has beenmade and a response is being formulated”: R v Ritch and Sparks, 2022 NSCA 52 at para 75.

While there may be circumstances where itis appropriate and prudent to do so, such was not the case here. The jury was not asking for clarification of a legal principle or indicatingconfusion about a legal issue. The jury required help only to the extent of the complainant’s evidence being made available to it.Following a discussion with counsel, the trial judge provided a clear and comprehensive response to the jury’s question explaining thatgiven the hour, the two video recorded statements and the audio recording of the complainant’s cross-examination would be providedthe following day.

She asked the jury to consider whether there were any issues they could continue to discuss before they reviewed theevidence requested, and to let her know if they had any additional questions. There was no request made by counsel for a direction thatthe jury cease its deliberations and nothing to indicate that was required. The jury subsequently advised it had no further questions andwould continue to deliberate.

Two hours later, it returned its verdict, essentially withdrawing its request. [8] As in R v JB, 2019 ONCA 591 at para 82, the jury was entitled to decide it was no longer necessary to re-hear thecomplainant’s evidence and to proceed to render a verdict based on the instructions it had been given. The record reveals no basis uponwhich to question this group decision nor the firmness and certainty of it: JB at para 82.

There is no basis to suggest the jury’s reasoningprocess was corrupted by a desire to conclude deliberations before the weekend: see, R v Healy, 2020 ABCA 197 at para 43 citing R vBarton, 2019 SCC 33 at paras 176-177. Disposition [9] We thank counsel for their well prepared written and oral submissions. [10] The appeal is dismissed. Appeal heard on 9th day of January, 2024 Reasons for Decision filed at Edmonton, Alberta this 12th day of January, 2024 Feehan J.A. Kirker J.A.

Authorized to sign for: Woolley J.A. Appearances: K.A. Joyce for the Respondent Z. Al-Khatib for the Appellant