R v Allard, 2023 ABKB 555

Court of King’s Bench of Alberta Citation: R v Allard, 2023 ABKB 555 Date: 20231010 Docket: 220513923Q1 Registry: Calgary Between: His Majesty the King Crown - and - Beverly Allard Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.31 . By Court Order, any information that could identify AN must not be disclosed in the course of these proceedings. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. This is a written version of the oral decision delivered October 10, 2023. I have edited this written version to add citations and headings, to ensure proper punctuation, spelling and use of language. I have not supplemented my oral reasons. This written decision is near verbatim from the oral decision delivered.

My oral decision remains the official ruling of the Court. _______________________________________________________ Reasons for Decision of the Honourable Justice Lisa A. Silver _______________________________________________________

Introduction [1] Beverly Allard is charged with one count on an Indictment that she did: Between the 7th day of January, 1990, and the 6th day of January, 1994, both dates inclusive, at or near Calgary, Alberta being in aposition of trust or authority towards or in a relationship of dependency with AN, a young person, did for a sexual purpose unlawfullytouch, directly or indirectly, with a part of the body or with an object, a part of the body of AN, contrary to section 153(1)(

a) of theCriminal Code of Canada. [2] Briefly, the allegation is that Ms. Allard, during the period covered in the Indictment engaged in a sexual relationship withAN, which started when AN was fourteen years of age and Ms. Allard was thirty-one or thirty-two years of age. At the time of the firstsexual encounter, Ms. Allard was AN’s case worker while he was at Hull Home, a treatment facility for young people in the childwelfare system. [3] The trial was heard over the course of three days from September 11 to 13, 2023. The Crown called three witnesses.

The firstwitness was Judith Weston who investigated the incident on behalf of Child and Family Services (CFS) in 1998. I note that because ofthe historical nature of the charges, what is now known as CFS was also known as Alberta Family and Social Services with child welfareservices as a sub-department. These terms will be used interchangeably throughout this decision. [4] Ms. Weston explained the reporting and supervisory obligations of case workers and supervisors employed within the childwelfare system.

She also commented on several documents and reports from CFS relating to AN, relating to his relationship with Ms.Allard, and relating to the 1998 CFS investigation. Some sixty-five pages of child welfare documents relating to AN were admitted intoevidence. [5] The Crown’s second witness was AN, who was forty-seven years of age at the time of his testimony. The third witness wasDetective Weir, who was the Edmonton Police Service officer from the sex crimes unit, who interviewed Ms. Allard on July 28, 1998,and received on August 4, 1998 Ms. Allard’s twenty-six page hand-written statement, dated July 25, 1998.

The statement was admittedinto evidence. Detective Weir’s case report was also admitted into evidence. [6] Ms. Allard, as is her right, did not testify, and no other defence evidence was led. Relevant Statutory Authority [7] Ms. Allard is charged under s. 153(1)(

a) of the Criminal Code as it was described at the time of the offence.

Section 153came into force on January 1, 1988. During the relevant time of the Indictment from 1990 to 1994, s. 153(1)(

a) read as follows: 153(1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in arelationship of dependency and who

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a youngperson, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years. Legislative Objectives [8] It is well-documented that the offence of sexual exploitation arose from recommendations of the parliamentary Committeeon Sexual Offences Against Children and Youth or what is known as the Badgley Report.

In CPO v Nova Scotia (Provincial Court),124 NSR(2d) 366, (NSSC), Justice Haliburton identified the animating principle or rationale behind the offence asfocusing on: adults, and those in positions of influence or example, should not be permitted to take advantage of that influence or power for self-gratification, and … young people, who are unable by immaturity or condition to make appropriate choices for their own behaviour, willbe protected from those who may be inclined to take advantage of them. [9] Later, in R v Audet, [1996] 2 SCR 171, (SCC), Justice La Forest confirmed the purpose of the offence is“to protect young persons who are in vulnerable position towards certain persons because of an imbalance inherent in the nature of therelationship between them.” Although protection of young people is a primary objective, the focus of the offence is on the actions of theadult who is in the identified position or relationship with the young person: R v JBS, 2009 ABCA 347 at para 4.

Issues [10] To obtain a conviction, the Crown must prove beyond a reasonable doubt that from January 7, 1990 until January 6, 1994,inclusive:

• AN was a young person within the meaning of section 153(2); • Beverly Allard engaged in one of the activities referred to in section 153(1)(a); • when the acts in question were committed, Ms. Allard was in a position of trust or authority towards AN or with whom AN was ina relationship of dependency; and • Ms.

Allard knowingly or recklessly or was willfully blind to the elements of the offence. [11] These above requirements mirror the essential elements of the offence of sexual exploitation as outlined in Audet at para 16:see also R v RT, 2017 ONSC 2625 at para 21. [12] It should be noted that pursuant to the combined effect of ss. 150.1 and 153, AN’s consent to the sexual activity in question isirrelevant. This removal of consent as an element of the offence underlines the enhanced protection parliament afforded to young peoplein these circumstances: Audet at para 23.

Legal Principles Burden and Standard of Proof [13] The Crown has the burden to prove Ms. Allard committed each element of the offence of sexual exploitation within therelevant time beyond a reasonable doubt.

The burden and standard of proof are “inextricably linked” with the presumption of innocence,a principle of fundamental justice that protects the integrity of our justice system by ensuring the innocent are not convicted: R v Starr,2000 SCC 40 at para 97. [14] In the 1997 decision of R v Lifchus, [1997] 3 SCR 320, (SCC), Justice Cory cautioned that a reasonabledoubt is not an “imaginary or frivolous” doubt nor is it based on sympathy or prejudice. Rather, a reasonable doubt is “based on reasonand common sense” logically derived from the evidence or absence of evidence: Lifchus at paras 30-31.

Sexual Exploitation [15] The Crown need not show that the accused person actually abused or used their position of power to access sexualgratification: Audet at para 13. Audet clarified there are several non-exhaustive factors to consider in determining whether therelationship was one as outlined in the section, and that the assessment is fact specific to each case: Audet at para 38.

These factorsinclude the “age difference between the accused and the young person, the evolution of their relationship and the status of the accused inrelation to the young person”: Audet at para 38. [16] Justice La Forest also cautioned that the status of the accused in relation to the young person is not the controlling factor noris it the only factor in considering whether the accused is in a position or relationship with the young person as required by s. 153: Audetat para 39.

Even so, Justice La Forest found it would be “excessively formalistic” to fail to appreciate that there are certain roles in oursociety between adults and young persons, with which adults are entrusted, where a “power dependency” is inherent in that relationship:Audet at para 40. [17] In Audet, Justice La Forest gave direction on the meaning and scope of the terms “position of trust” and “position ofauthority”. He found those terms should be given their ordinary meaning. They are not terms of art nor are they “specialized concepts oflaw”: Audet at para 33.

Justice La Forest at paragraph 33 referenced and approved of Justice Blair’s

interpretation of these terms in R vPS, [1993] OJ No 704 (QL). In PS Justice Blair found “position of authority” to “invoke notions of power and the ability to hold in one’shands the future or destiny” of the young person. [18] In interpreting “position of trust,” Justice Blair turned to the dictionary meaning of “trust” as “a firm belief in the reliability ortruth or strength of a person”.

He also described the nature of a relationship between an adult and young person that fulfilled the term“position of trust.” Blair J suggested that where such a relationship “creates an opportunity for all the persuasive and influencing factorswhich adults hold over children and young persons come into play, and the child or young person is particularly vulnerable to the swayof those factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test.” In thosecircumstances, having regard to the totality of the evidence and the factors as outlined in Audet, a position of trust with the young personis created. [19] Justice Pomerance in R v RT, 2017 ONSC 2625, at paragraph 36 summarized several factors to consider in determiningwhether the relationship arose out of a position of trust.

In addition to the factors outlined in Audet, Justice Pomerance’s list of factorsinclude the “degree of control, influence or persuasiveness” exercised by the accused over the young person, the vulnerability of theyoung person in terms of their intelligence, sophistication, independence, and maturity, and any grooming, pressuring or incentivizingbehaviour by the accused. [20] Pomerance J also commented on the factors of age and status. In her view the larger the age gap between the accused and theyoung person, the more likely the relationship was one of trust.

Similarly, the more formal the status such as “teacher, parental figure,mentor,” the more likely the relationship was a trust one. [21] Although a relationship of dependency is a separate form of relationship that gives rise to an offence under s. 153, I find themeaning of such a relationship is informed by the objective of the

section to protect vulnerable young people from intimate relationshipswith adults where there is a power imbalance. Such a relationship must be assessed considering the factual circumstances of the case butarises from an atmosphere of reliance where the young person looks to the adult accused for needed emotional and/or physical support. [22] Finally, Justice La Forest at paragraph 38 in Audet commented on the difficulties a trial judge may have in determining when

the position or relationship as outlined in s. 153 “begins and ends.” In R v RT, Justice Pomerance commented on the issue of duration atparagraphs 37 and 38. According to Justice Pomerance a position of authority or a relationship of dependency may be situational, andtherefore it might be clearer to see the end of such relationships. For instance, status may change, or dependency may end. The ending ofa relationship based on trust is more nuanced. Trust involves the personal relationship rather than a status or role. It involves anemotional attachment between the accused and the youth.

As such, a relationship based on trust may continue even when the relationshiphas changed. Reliability and Credibility of the Evidence [23] To determine whether the Crown has proven the offence beyond a reasonable doubt, I must assess the reliability andcredibility of the testimonial and documentary evidence proffered at trial. Reliability of evidence is connected to the accuracy of thatevidence.

When assessing the reliability of testimonial evidence, factors such as the ability of the witness to observe, recall, and recountevents will be relevant markers: R v RC, 2023 ONSC 4334 at para 15. [24] Credibility is a separate assessment involving the believability or truthfulness of the evidence. Credibility and reliability areseparate in that an honest and credible witness may be mistaken and therefore be an unreliable witness to events.

Significantinconsistencies in a witness’s evidence on material issues may also impact the credibility assessment of that witness: R v Baltazar, 2021ABQB 177 , 2021 ABKB 177 at para 84. Bias may be another factor in a credibility assessment. In the end, credibility must beassessed based on the entirety of the evidence at trial.

There is no one factor that determines a witness’s credibility: R v MH, 2023ABKB 393 at paras 116 to 119. [25] Moreover, I can accept all, part or none of a witness’s evidence based on my assessment of a witness’s evidence: R v REM,2008 SCC 51 at para 65. [26] AN testified to events that happened from twenty-nine years and thirty-three years ago when he was between fourteen andeighteen years of age. I must assess AN’s evidence in terms of reliability and credibility as he is now, an adult of forty-seven years ofage.

Even so, the presence of inconsistencies, particularly on peripheral matters such as time and place should be considered in thecontext of AN’s age at the time of the events: R v RW, [1992] 2 SCR 122, (SCC) at p 134; R v GSO, 2021 ABCA 310 atpara 6. [27] I must also assess the reliability and credibility of Ms. Allard’s written statement she gave to the police in 1998. There issupport in case authority that where there is conflicting evidence favourable to the accused or exculpatory evidence requiring credibilityfindings, then the W(

D) framework applies: R v W(D), [1991] 1 SCR 742, ; R v BD, 2011 ONCA 51 at paras 105, 114; Rv Ryon, 2019 ABCA 36 at para 29; R v Allale, 2019 ABCA 154 at para 32. [28] This means that when I am assessing exculpatory portions of Ms. Allard’s statement to the police or where the statementconflicts on material issues with the Crown’s evidence, I am not required to believe or disbelieve Ms. Allard’s statement on that vitalissue. Rather I must view such evidence in the context of the totality of the evidence at trial to determine whether I am left in a state ofreasonable doubt: R v UK, 2023 ONCA 587 at paras 117-118. The overarching principle flowing from W(

D) is to ensure that inassessing the evidence the burden of proof remains on the Crown to prove the elements of the offence beyond a reasonable doubt. [29] When assessing the documentary evidence, I must be particularly mindful of the reliability and accuracy of the content of theevidence by reviewing the source of the information, whether the information was recorded contemporaneous to the events, and whetherthe information is based on opinion or fact. Position of the Parties [30] The Crown submitted that the allegations in the Indictment are proven beyond a reasonable doubt based on the following: • Ms.

Allard’s written statement admits the age difference between her and AN, that they engaged in sexual intercourse and that Ms.Allard was AN’s case worker at the relevant time.

Moreover, there was no inconsistency with AN’s evidence on these critical points andthe CFS records confirmed the timing and the relationship; • AN’s evidence of the relationship went unchallenged and uncontested by the defence through cross examination; • AN was credible and reliable despite his lengthy record and the fact he testified about historical events; • Based on the evolution of their relationship from one of authority and trust to one of dependency, considering the large agedifference, and Ms.

Allard’s degree of control over AN, the Crown has proven sexual exploitation beyond a reasonable doubt. [31] Counsel for the defence submitted the Crown has not proven the offence, as charged in the Indictment, beyond a reasonabledoubt based on the following arguments: • In reading Ms. Allard’s written statement through the perspective of a victim of sexual assault, AN sexually assaulted Ms. Allardand therefore the first sexual encounter with AN was an involuntary act without Ms. Allard’s consent.

To maintain otherwise is to applysexual assault myths and stereotypes; • In any event, there is evidence AN was thirteen years of age at the time of the first sexual encounter and therefore outside of thesection requirements; • There was no evidence of a relationship of authority, trust or dependency after AN left secure treatment. Moreover, the requiredelements of sexual exploitation do not coincide;

• There is no reliable evidence the child born on November 9, 1992 was fathered by AN. There was no expert DNA evidence called and when in Ms. Allard’s statement she speaks of AN as the father of the child, she was referencing past events and therefore her evidence was vague and unreliable; • The documentary evidence from CFS is incomplete and not sufficiently reliable; • AN, coupled with his extensive criminal record, was evasive, unresponsive, and cavalier in his direct examination and not worthy of belief.

Evidence at Trial The Complainant AN [ 32 ] AN was placed in the care of child welfare services by his mother on January 4, 1989. At the time, AN, who was born on January 7, 1976, was three days short of his thirteenth birthday. By late 1989, he was sent to the William Roper Hull Home also known as Hull Home, which was a secure residential treatment facility. In this facility, young people, who are a harm to others or themselves, are sent for assessment and treatment.

In this case, AN had assaulted another child with a knife. [ 33 ] According to AN, it is in Hull Home, when he was thirteen years of age, that he first met Beverly Allard, as she is now known, who was AN’s assigned case worker. As AN’s caseworker, Ms. Allard organized AN's treatment and assessments. Ms. Allard would sit in on AN’s therapy meetings. Ms. Allard was AN’s key worker. [ 34 ] AN recalled that he and Ms. Allard took a liking to one another. They became close friends even though there was an eighteen-year difference in their ages. At the time, Ms.

Allard, who was born on March 28, 1958, was thirty-one years of age. [ 35 ] Ms. Allard would take AN outside of the facility to parks, movies, restaurants, and even pubs. She would give him cigarettes and other extra privileges. [ 36 ] Ms. Allard also assessed his conduct while in the facility, giving him points for good behaviour. These points could be exchanged for special items like toys, candy and comic books. AN testified that he received more points than the other children in the facility. AN enjoyed the attention he was receiving and preferred her to the other workers in the facility.

Because of this “extra attention,” in AN’s words, he had a “crush” on Ms. Allard. [ 37 ] The close relationship became more physical. AN described how they would “bump” into each other while walking. This physical playful aspect of their friendship continued. They would also hug before Ms. Allard left her shift. AN described this as a “loving relationship” that was not sexual. [ 38 ] Ms. Allard also allowed AN to come to her home. On one such occasion, when AN was fourteen years of age, he was at Ms. Allard’s home when they started playing around as Ms. Allard chased him around the home.

The chase led them into Ms. Allard’s bedroom. AN pushed Ms. Allard onto the bed where they wrestled in each other’s arms. AN testified that the actions were indicative of the close bond between the two of them. [ 39 ] Ms. Allard then asked AN what the other counsellors would say about what they were doing. AN became defensive and protective. He told Ms. Allard that the other counsellors would not understand. [ 40 ] Once in one another’s arms, Ms. Allard pulled him closer and AN started kissing her neck. It was “nice,” and he kept kissing her.

It was at this point, AN could feel their relationship was changing to a sexual one. He knew “it was something wrong.” That night when they had their arms around each other AN was “just happy to have that closeness with somebody” as his mother was gone since he was six years of age. It was at that point everything changed between AN and Ms. Allard because Ms. Allard changed it. AN stayed the night with Ms. Allard. [ 41 ] AN was asked in direct examination how he left Ms. Allard’s home after the incident together.

AN testified that he “ended up staying there for like a very long time, according to me” and that he “couldn’t want to go back after that.” In any event, Ms. Allard would drop him off near Hull Home on her way to work. After that first night their relationship changed to a sexual one. At the time AN testified he was around thirteen or fourteen. [ 42 ] AN agreed Ms. Allard was working as his counsellor when he went back to Hull Home. He also testified that Ms. Allard was “declared a volunteer” so she had a “proper title” for them to spend time together. Ms.

Allard also worked on other cases with other youth for whom she did “amazing” work. Ms. Allard “challenged” and “motivated” AN. In his view, “some very good things” came out of their relationship. But as an adult, AN knew “where it was she went wrong.” [ 43 ] According to AN, the relationship “lasted for years.” He recalled when his children with Ms. Allard were conceived. When asked again how long his “boyfriend/girlfriend” relationship lasted with Ms. Allard, AN could not remember.

It was, however, “long enough to have a family.” AN testified their relationship created “some of the best moments” of his life. [ 44 ] In 1992, when AN was sixteen years of age, Ms. Allard gave birth to their son. At that time, he was expected to be living at Hull Home but where AN thought he was supposed to live was with a family that “cared” about him. He recalled that he lived mainly with Ms. Allard when he was not living at Hull Home. [ 45 ] AN admitted to a lengthy criminal record starting with a conviction for break, enter, with intent to commit an indictable offence when he was fourteen years of age.

He was also convicted of driving offences in 1992 involving his use of Ms. Allard’s car.

[ 46 ] He was convicted of another break and enter in 1993 and 1999. AN explained that the break and enters happened when “he was trying to get back into his place”. According to Ms. Allard’s written statement to the police, at least the 1999 conviction was when AN broke into Ms. Allard’s home. [ 47 ] Over the years AN accumulated convictions for violent offences such as assault and aggravated assault as well as many failure to appear offences and failure to comply with bail and probation offences. He was convicted of offences almost on a yearly basis from 2001.

AN explained the court dates didn’t stick in his head as he was often on the streets. Essentially, the record shows AN to be in and out of jail in the latter part of his life. At the time of the trial, he was in custody serving a lengthy sentence for aggravated assaults. [ 48 ] AN further testified that he was diagnosed with PTSD and depression. Beverly Allard’s Written Statement to the Police [ 49 ] According to Ms. Allard’s written statement to the police, Ms. Allard met AN in September of 1989 while employed as a childcare worker in secure treatment at Hull Home. According to Ms.

Allard, AN remained “a client in the program for approximately seven to eight months.” She was one of “several” workers who supervised AN. She worked with his therapist to oversee and implement his daily program. [ 50 ] Ms. Allard explained that after four months in the program, AN became “infatuated with her.” She raised the issue with her co-workers and she and another male co-worker spoke to AN about their concerns. They told AN that Ms. Allard was “a counsellor, much older than him” and that their relationship was limited to AN’s placement in treatment. [ 51 ] Ms.

Allard then described in detail the evening in which she and AN first had sexual intercourse. It was an evening months after AN was warned about his feelings for her, near the time AN would be discharged from the secure treatment part of the program. [ 52 ] AN showed up at her home after finding her address in the phone book. He had run away from Hull Home, would return there soon but wanted to talk to Ms. Allard. Ms. Allard was surprised and “a little flattered” that AN had come to see her. She let him come in.

She explained that she did not call Hull Home to advise he was with her because she “trusted” he would return, and she was “concerned” what her co-workers would “think” about him coming to her home. [ 53 ] AN and Ms. Allard sat on the couch and chatted. AN felt Ms. Allard needed to relax and laugh and he began tickling her. According to Ms. Allard, they “ended up wrestling around for a bit.” It seemed this was “all just in fun.” At one point, according to Ms.

Allard’s statement the “tone” changed, and she felt “uncomfortable.” She further explained in her statement at page three that AN “was an extremely attractive and charming young man.” Moreover, she knew AN liked her. She then left the room and went to her bedroom “to have a moment alone” and to “decide what to do”. [ 54 ] While in her bedroom, AN jumped into her room through a connecting closet and “tackled” her, “threw” her on the bed and started tickling her again. AN then stopped and “suddenly” kissed her. Ms. Allard recalled that she pushed him away and they stared at each other.

AN then “leaned down and kissed her again.” [ 55 ] In her statement Ms. Allard maintained she did not know why she “let it happen.” She recalled thinking at the time “I can’t believe this is happening, what I am doing – and then another part of me was saying to myself, don’t think just don’t think about anything.” She further explained that she was “not sure if it was some stupid selfish Mrs. Robinson ego thing I had going on in my head or the reality that it just felt so nice to be held, to be with a person who found me attractive, desirable.” During that year Ms.

Allard’s marriage had broken down and “the sexual aspect” of her relationship with her husband had been unsatisfying for years. AN told Ms. Allard that he wanted to “make love to me, that he cared for me a great deal and would never hurt me, that he wanted his first experience to be with” her. [ 56 ] Ms. Allard on page six of her statement admitted she and AN had intercourse. After, when “reality” sunk in, she cried while AN comforted her. AN told her that she did nothing wrong and their age difference did not matter to him. He promised he would not tell anyone. [ 57 ] According to Ms.

Allard, AN later returned to Hull Home and she called in sick for a few days. When she returned to work, she and AN “carried on as if nothing happened.” Soon after AN was discharged from the secure treatment program and transferred to the day treatment program until a permanent placement could be found for him. [ 58 ] Over the following year, Ms. Allard was no longer in the secure treatment unit and worked with other counsellors in home- based treatments during the evening. She did see AN “fairly regularly” as she reported to one of the therapists on the Hull Home campus. AN would stop at her home on occasion.

During these times, AN would tell Ms. Allard that he cared for her and wanted to be with her. [ 59 ] Ms. Allard admitted on page seven of her statement that they “engaged in intercourse on two or maybe three of these occasions”. Ms. Allard could not explain why she did this other than AN made her “feel good” at a time she did not “feel good” about much in her life.

She rationalized the continuation of the sexual relationship by believing she “had already done the worst thing” by sleeping with him the first time. [ 60 ] In the Spring of 1991, AN’s mother contacted AN’s social worker to raise concerns about AN’s relationship with Ms. Allard. AN had earlier disclosed to his mother that he had strong feelings for Ms. Allard. AN’s social worker requested the agency investigate the situation. AN was living in a foster home at the time. The investigation found the allegations were unsubstantiated. [ 61 ] AN and Ms. Allard denied their relationship was improper.

AN suggested his mother was jealous of his close relationship with Ms. Allard. Even so, the agency asked Ms. Allard to “sever” contact with AN. Ms. Allard agreed. By this time her project was terminated and instead of returning to secure treatment Ms. Allard took a pay out and stopped working at Hull Home.

[ 62 ] In the meantime, AN left the foster home and was living independently. He was attending school. They reconnected with one another and saw each other regularly. Then, according to page eleven of Ms. Allard’s statement, “a few months after” AN’s sixteenth birthday, she and AN had sexual intercourse. AN told her that he loved Ms. Allard and they would marry. She told him he would “meet some nice girl his age, realize this was nothing more than an infatuation” and forget all about her. [ 63 ] Six weeks later, Ms. Allard found out she was pregnant. Despite the humiliation she decided to have the child.

She disclosed her situation to her sister-in-law and they talked about how she should “atone for her sins.” She also disclosed the situation to her mother, sister, and brothers. She was three months pregnant when she told AN. [ 64 ] AN wanted to know what he could do for her. Ms. Allard stated at page thirteen of her statement that she advised AN “that as the child’s father” he had a right to have input on the kind of relationship he would have with his child. For the next six months AN lived at his own place, partying and going to school.

AN requested his guardianship be terminated which was denied. [ 65 ] In any event when the baby was born in November of 1992, for the first few months AN “was very co-operative and helpful with anything.” AN told her that he wanted them to be together but he would “keep his distance” to not arouse suspicion about the parentage of the baby. [ 66 ] But then, a few months after the birth of their son, AN dropped out of school and stopped being helpful. AN spent the “majority” of his time living at Ms. Allard’s place. AN promised to get a job, but “never” did. He began spending her money and taking her car at night.

He refused to help care for the baby and spent “a great deal of time with numerous young girls.” Still AN insisted Ms. Allard was his girlfriend. [ 67 ] It was at this point, the relationship turned into an abusive one. Ms. Allard stated that they AN “was walking all over me and I didn’t know how to stop him.” He slapped her and told her she was “stuck with him forever.” If Ms. Allard tried to leave AN he threatened to disclose their relationship. These threats of disclosure and physical violence continued. AN became controlling and intimidating towards Ms. Allard. [ 68 ] Although Ms.

Allard describes in detail instances of when AN threatened and intimidated her, there were no dates connected to these events. Ms. Allard did, however, describe when AN was arrested for an outstanding charge for dangerous driving. She recalled he was sentenced to eighteen months in an adult correctional facility. AN’s criminal record confirms this as happening August 12, 1994. By this time, AN was eighteen years of age. [ 69 ] Ms. Allard decided she “couldn’t take living with his threats to charge me any longer” and disclosed the relationship to her supervisor. Based on Ms.

Allard’s statement this happened sometime in 1996. Ms. Allard was concerned if the relationship was disclosed her career would be over resulting in a reduction in her finances, she would face incarceration and lose custody of her son. [ 70 ] By 1998, Ms. Allard and AN’s relationship was beginning to unravel. Ms. Allard was forty years of age, and AN was twenty- two years old. They had another child, a daughter, in 1998 but within a short period of time after the birth, AN became abusive again. Finally, in July of 1998, Ms. Allard approached the authorities and disclosed the relationship. [ 71 ] At the end of Ms.

Allard’s written statement, she stated that “I know that what I did was wrong. I know that I can be held responsible for a criminal offence. I have lived in my own prison for the past six years and I can’t subject myself or my children to this any longer. This is why I have come forward”. [ 72 ] I pause to comment that the evidence relating to AN and Ms. Allard’s relationship, outside of the years covered by the Indictment, do not form any part of the evidence on whether Ms. Allard committed the offence as charged. The evidence is merely part of the context of Ms.

Allard’s disclosure and subsequent written statement to the police. It also serves as context for AN’s criminal record. Evidence of Detective Weir [ 73 ] Detective Weir was the investigating officer who interviewed Ms. Allard and received her written statement in 1998. He had no independent recollection of the case. His investigative report was admitted into evidence on consent as past recollection recorded, an exception to the hearsay rule. [ 74 ] The interview occurred on July 28, 1998, and the report was written August 5, 1998.

The report indicates that the occurrence type is “sexual exploitation/trouble with man”. Ms. Allard was listed as the complainant but then later in the report as “subject #1”and AN as the subject or “subject #2” of the investigation. Detective Weir was a member of the sex crimes unit of the Edmonton Police Service. [ 75 ] The

summary of the facts in the report tracks Ms. Allard’s written statement. In that

summary Detective Weir stated that “While at this point we have only Allard’s view as to what had transpired and why, she has admitted under caution that they ended up having sexual intercourse” in 1990. [ 76 ] The

summary indicates that Ms. Allard alleged AN held the relationship “over her head,” threatened her with disclosure and suggested she would lose her job and go to jail “if she didn’t do his bidding.” The report confirms that there were two children from the relationship. Ms. Allard reported the relationship as she could not keep “going on like this.” [ 77 ] There was a taped two-hour interview which was destroyed. After the interview, the Detective requested that Ms. Allard provide a written statement which she did on August 4, 1998. A copy of the statement was sent to Calgary Police Services. No charges were laid at the time. The Evidence of Judith Weston

[ 78 ] Judith Weston, a former supervisor with CFS, was asked to review AN’s file in 1998 because of Ms. Allard’s interview and written statement to the police in July and August of 1998. She investigated the matter from October 1998 to February of 1999. As part of that review, she generated reports and documents such as a screening report that was a

summary of her investigation. As part of the investigation, she reviewed historical material in AN’s file but also spoke to various contacts. For instance, she reviewed contact notes prepared by case workers of AN and Information Consolidation reports in which every 3 to 4 months the case worker would bring together all notes, relevant documents, and observations of the child in care. [ 79 ] Ms. Weston spoke to the general duties of a case worker in the CFS system. She also spoke of her duties when she was a case worker supervisor and responsible for ongoing training of case workers.

She was aware of the practices, policies, procedures, and legislation pertinent to the role. She trained case workers on the ethical dimensions of the job including professional boundaries with clients. She would ensure the case workers were aware of their duty to protect a child’s rights. The case workers were required to respect the needs and wellbeing of the child in their care. Case workers would also be aware that they were in positions of trust vis a vis their child clients. [ 80 ] Ms. Weston also spoke to the standard practice of record keeping at CFS.

She testified that case workers would be required to complete detailed notes on the child in their care including contact notes and progress reports. The case workers were aware that the notes should be made contemporaneous with the events or as soon as possible after the event to ensure the notes were accurate and complete. As a supervisor, Ms. Weston would review case worker notes and request further information if a note was unclear or if there were concerns with inaccuracy.

Documents from Child Family Services [ 81 ] The documents from CFS confirm AN was placed in Hull Home in 1989 when he was thirteen years of age. At that time Ms. Allard, then known as Bev Miyamoto, was assigned to his case. In Ms. Weston’s screening document dated October 8, 1998, and in her contact note, Ms. Allard was called a “volunteer.” [ 82 ] Ms. Weston also wrote an “Infoback” dated November 10, 1998, which was a

summary of her investigation. In the document, she confirmed AN’s birth date as January 7, 1976, that AN came into the care of child welfare in January of 1989, and was subject to a permanent guardianship order December 28, 1990. [ 83 ] Ms. Weston recorded in her contact notes when she spoke to someone regarding her investigation. These notes start on October 8, 1998, and continue to December 8, 1998. The relevant entries in these contact notes are as follows: • On October 8, 1998 Ms. Weston received a telephone call from the Assistant Dean (AD) of continuing education at Concordia College where AN was attending.

The AD reported her conversation with AN, who disclosed his sexual relationship with Ms. Allard. AN was angry with the AD reporting the incident. AN told the AD he was “conflicted about relationship” with Ms. Allard, that he was dependent on her, and named “this” as one of his “demons.” AN was also protective of Ms. Allard and concerned his disclosure would cause Ms. Allard to lose her job. AN explained that “he has been dealing with this and people like “us” all his life.” • On October 8, 1998 Ms.

Weston received a phone call from Debbie Brepon from “success by six.” AN was upgrading and revealed problems he was having including dissociative feelings. He advised her that while in a group home in Calgary he was involved in a sexual relationship with a female staff member and fathered two children with her. He was fourteen and the staff member was 29 years of age. He was recently separated from her. • The last note was from December 8, 1998 indicated that AN broke into Ms. Allard’s home and was charged. [ 84 ] The documents contained contact notes from case workers involved in AN’s care.

There were also four Information Consolidation reports authored by AN’s case worker, Mona McNaughton (who later becomes Mona Letendre) and was reviewed by Dennis Whitford, the case worker supervisor. [ 85 ] The earliest contact notes started on June 1991, when AN would have been fifteen years of age. These contact notes were written by child welfare worker Sheila Johnston and were reviewed by a supervisor. The notes start on June 24, 1991 until July 26, 1991.

The relevant entries in these contact notes are as follows: • On June 24, 1991 a phone call from Jasmine Pearson, who relates to the author of the notes concerns with the closeness of AN’s relationship with Ms. Allard. The decision was made to decrease Ms. Allard’s involvement with AN. The concern was an ongoing one since AN started the Integrated Day Treatment Program (IDT). • On July 17,1991 is a phone call with Sherri Wheeler, AN’s children’s advocate, who voiced AN’s concerns. AN was not “happy” with the decision to end contact with Ms. Allard. The author of the notes advised Ms.

Wheeler that the author had concerns with the relationship in “early 1990” when AN entered the IDT program. At the time the author recommended the relationship should be terminated so that AN could “find other meaningful and constructive relationships.” • On July 17, 1991 the author had a telephone call with Jasmine Pearson. Jasmine advises that they are reducing scheduled supervised contact between Ms. Allard and AN so that by the end of August their contact would end. • On July 17, 1991 the author indicates Ms. Allard will speak to AN about the decision. The note indicates AN feels Ms.

Allard is “being made to do this.” The author noted surprise that Ms. Allard is in agreement. There is a phone call the author has with Ms. Allard indicating “shock” that AN’s mother complained about the relationship. • On July 19, 1991 the author had a conference call with AN and his children advocate Sherri Wheeler on AN’s relationship with Ms. Allard. AN was upset the relationship was being terminated by child welfare services. In AN’s view, they could not chose with

whom he was “friends.” The author noted her concern with AN’s “dependency” on Ms. Allard and “too much affection.” The author’s recommendation was to follow up at Hull Home with the termination. • On July 25, 1991, Sheila received a phone call from Igor Hryenko at secure treatment regarding inappropriate holding of hands between AN and Ms. Allard. Igor also noticed hugging between the two. Igor spoke to Ms.

Allard about his concerns and “how others might see it.” Even so, in Igor’s opinion, he would be “surprised if inappropriate social behaviour was happening.” • July 26, 1991 Sheila received a phone call from someone whose name is blacked out that AN left Hull Home without permission. The person did not feel any “sexual things” were happening between AN and Ms. Allard, that Ms. Allard is merely affectionate, and AN has a girlfriend. The person further indicated Ms. Allard was a “motherly figure” for AN and positive influence. Ms. Allard told the person that it took a long time for AN to “trust” Ms.

Allard as AN would not allow anyone to touch him. Ms. Allard explained to the person that her family is “very affectionate.” [ 86 ] There are contact notes written by AN’s child welfare worker Mona McNaughten from September 30, 1991 to February 11, 1992. The relevant notes are as follows: • September 30, 1991 there was a team meeting at Hull Home regarding AN. Present was Jasmine, the program manager (George), AN’s therapist, the coordinator of the day treatment unit, AN’s foster mother, and Ms.

Allard, who was AN’s “volunteer.” They were discussing AN’s permanent placement plan. • In the meeting the discussion involved the termination of “volunteer” Ms. Allard’s contact with AN. In September AN went AWOL. The team discussed how to help AN with his loss of relationship with Ms. Allard. There was discussion about AN being told he could resume relationship with Ms. Allard in September. A letter written by AN about the situation was read out to the team. The author noted that Ms. Allard felt it was a “political issue.” AN considered going to court over the matter. Ms.

McNaughten noted that AN “to dependent on” Ms. Allard and that she would discuss “volunteer issues” with “Dennis.” • October 3, 1991 note indicates AN wanted to meet with Ms. Allard and Ms. Wheeler. Ms. McNaughten authored a note to “Dennis” that Hull Home has “a lot of concern” with the relationship between AN and Ms. Allard but feels it is “blown a little out of proportion.” In her opinion, having met Ms. Allard and AN, there was no “sexual connotations” to their relationship. • October 14, 1991 Ms. McNaughton received a telephone call from Ms.

Allard “volunteer” for AN announcing her resignation from Hull Home. Ms. Allard indicated that AN has not been “represented fairly by the agency.” Ms. Allard “has always thought of herself as an advocate for” AN. Ms. Allard advised that “issues of importance” for AN was “being trust.” • November 7, 1991 telephone call with AN’s mother who stated “if [AN] wants to continue seeing Bev that’s his business” and to tell AN that “it was all a misunderstanding.” Ms. McNaughten noted that “Heather” indicates Ms. Allard “has helped [AN] through his father’s death and abandonment by mother.

Bev is the only person [AN] trusts at this point.” • November 7, 1991 is a note that as Ms. Allard resigned AN can see Ms. Allard and the agency sees “no risk” for AN but a “positive … trusting relationship.” Hull Home disagrees. • December 4, 1991 phone call with Ms. Allard indicating that AN calls Ms. Allard at least a couple of times a week. [ 87 ] Ms.

McNaughten’s Information Consolidation dated January 14, 1992 contained the following relevant information not found in the contact notes from the same period: • On April 17, 1991 AN was transferred from secure treatment to the Integrated Day Treatment Program through Hull Home. • As of the date of the report, AN was AWOL and did not wish to return to Hull Home. He resides between three residences. • The writer described AN as a “mature” sixteen year old. • AN advised Ms.

Allard was a “positive in his life”. [ 88 ] Mona Letendre’s Information Consolidation dated June 28, 1992 contained the following relevant information: • February 11, 1992 phone call with Scott Cooper, AN’s youth worker at McMann Youth Services, that AN spoke to Scott about living with Ms. Allard but Scott realizes that is not an option. • February 12 to 28, 1992 phone calls with Scott about setting up AN’s living space.

AN started in the Independent Living Program as of March 1, 1992. • Meeting with AN and Scott – that AN is doing well in the AADAC (alcohol addiction program for youth) program and AN settled into own apartment and advises he enjoys being “independent”. • June 9, 1992 call with Scott. AN was drinking, taking marijuana and pills. AN taken to hospital and Ms. Allard picked him up. • June 15, 1992 phone call with Barb Davis from AADAC indicating AN involved in a sexual relationship in the past and currently with a “female counsellor from another agency” who is pregnant. Person in a counselling role with AN.

AN denied. • June 18, 1992 call with Scott about the AADAC program allegation. Scott feels Ms. Allard is a “very strong support” for AN. Scott met with Ms. Allard and feels accusations untrue. • Other notes: AN has an alcohol addiction problem since his father’s death in 1988. His friends are “quite a bit older” than him and he finds people his age too “immature.”

[ 89 ] Ms. Letendre’s Information Consolidation dated January 30, 1993 contained the following relevant information: • September 1, 1992 phone call with AN requesting money for school fees and supplies to attend E.P. Scarlett. • September 9, 1992 phone call with Ms. Allard who is assisting AN and asking about the payment of the school fees for AN. • October 20, 1992 meeting with AN and Scott. AN moved to an area closer to school and living with brother. AN “has matured a great deal” but socializes rather than studies. Ms.

Allard a “positive support.” • October 30, 1992 call with Scott that AN having problems at school. AN admitted to drinking on weekends. • November 27, 1992 meeting with Scott and AN. AN not doing well. AN “seldom at his apartment.” AN has a girlfriend. • December 4, 1992 call with Scott that AN charged with possession of stolen car. • January 25, 1993 call with Scott that Scott confronted AN about Ms. Allard’s child born in November of 1992 which AN insists was a result of artificial insemination. • Other notes: Scott having a lot of difficulties with AN. Ms. Allard continues to be “positive support” and Ms.

Allard a “confidante” for AN. Ms. Allard will call Scott if she has concerns with AN. AN has many positive and negative friends and has “frequent contact” with his family on the reserve. [ 90 ] There are contact notes written by case manager Letendre from June 9, 1992 when AN was sixteen years of age to May 11, 1993 when AN was seventeen years of age. The relevant notes are as follows: • February 11, 1993 phone call with Scott where Scott indicates AN “indirectly admits baby is his.” AN spends most of his time at Ms. Allard’s home. • May 3, 1993 note on call with Scott. AN evicted from apartment.

AN presently living with Ms. Allard. AN wants to terminate his connection with social services. Scott feels AN “more than ready” to be out on own. AN feels “he is mature enough” to be on own. • May 5, 1993 phone call with Scott that AN is leaving the McMann program. AN’s “choice is to live at Bev’s”. [ 91 ] Ms. Letendre’s Information Consolidation dated July 22, 1993 contained the following relevant information that is not found in the contact notes: • February 11, 1993 call from Scott that AN has “a lot” of contact with his mother. • June 23, 1993 meeting with Scott and AN. AN no longer has job.

AN does not want child welfare involvement. [ 92 ] Also introduced as evidence were two live birth certificates of AA born on November 9, 1992 and JNA born on April 26, 1998. Analysis [ 93 ] As indicated earlier in these reasons, the Crown is obliged to prove beyond a reasonable doubt the essential elements of the offence under s. 153 as described in the Indictment. I will analyze these elements considering the applicable law and the evidence. [ 94 ] I will first determine whether AN was a young person within the dates charged in the Indictment when Ms.

Allard touched AN for a sexual purpose as required under s. 153(1) (a). Then I will determine whether during that period, Ms. Allard was in a position of authority or trust towards AN or whether AN was in a relationship of dependency with Ms. Allard. These are the prohibited act or actus reus elements of the offence under s. 153(1)(a), which the Crown must prove beyond a reasonable doubt. [ 95 ] Finally, I will determine whether Ms.

Allard knowingly, recklessly or was willfully blind to the fact she was in a position of authority and/or trust towards AN and/or in a relationship of dependency with him when she touched for a sexual purpose AN, who was a young person.. This is the fault element or mens rea of the offence, which the Crown must prove beyond a reasonable doubt. [ 96 ] Before making those findings, I will assess the credibility and reliability of the evidence.

Assessing the reliability and credibility of the evidence AN’s evidence [ 97 ] Counsel for the defence characterized AN as evasive in his answers and unresponsive to questioning by the Crown. Counsel pointed to many responses of AN in AN’s transcript of evidence as examples.

This fact coupled with his extensive criminal record, which included convictions for administration of justice offences showed AN had no regard for the law, established he was not worthy of belief, and that his evidence lacked credibility. [ 98 ] Moreover, the defence maintained AN was an unreliable witness lacking specificity in describing his relationship with Ms. Allard. For example, counsel pointed to AN’s difficulty recalling exactly how old he was when the sexual relationship began with Ms. Allard. He hesitated when asked about his age and gave an age range of thirteen or fourteen.

[99] I had the benefit of hearing and observing AN give his testimony. I find AN was not being deliberately evasive orunresponsive in his answers. Rather, he was responding as best as he could to questions about events that happened in his past when hewas a young person. [100] Although AN has an extensive record, I find that AN’s evidence was given in a sincere, fair, and honest manner. He did notattempt to exaggerate his evidence, nor did he testify in anger or vengeance in mind. AN, in my view, is worthy of belief. I say thisappreciating that according to Ms.

Allard’s written statement her relationship with AN, when he became older, was tumultuous andabusive. [101] Nevertheless, AN’s memory of the events has diminished over the thirty years plus since the events in question happened.Much has happened to AN in the intervening years. He has accumulated a lengthy criminal record and has been in and out of custody inthe last fifteen years. Despite this, I am satisfied that in essentials AN is clear on what happened between him and Ms. Allard. Moreover,Ms. Allard’s statement aligns with his memory.

Finally, when it comes to timeline and dates, the documentary evidence also confirmsAN’s testimony. Beverly Allard’s 1998 written statement to the police [102] Counsel for the defence made two different submissions regarding Ms. Allard’s written statement she gave to the police inAugust of 1998. He first maintained that the statement reflects a woman who was sexually assaulted. He further submitted that due to thepassage of time, the statement was written in a vague and unreliable manner, particularly when Ms.

Allard describes her first pregnancy.In assessing these submissions, I am aware that the Crown has the burden throughout to prove the offence beyond a reasonable doubt. [103] On a careful reading of Ms. Allard’s statement, being mindful of the myths and stereotypes surrounding the disclosure of sexualviolence by woman who have been victimized, I find the first incident of sexual activity between AN and Ms. Allard is not a sexualassault for the following reasons having regard to the circumstances of the statement, the manner in which the statement was written, andthe content of the statement. [104] Ms.

Allard initiated contact with the police. She did so in response to threats by AN to disclose the nature of their relationshipand to terminate her relationship with AN. The statement gave Ms. Allard the ability to tell her version of the events before AN went tothe authorities. The statement was written by Ms. Allard’s own initiative. When interviewed by the officer from the sex crimes unit, Ms.Allard advised she had already started writing the statement. She completed the statement after her two-hour interview with the police.At all times Ms.

Allard controlled the way the statement was written and presented. [105] The statement also gave Ms. Allard the opportunity to advise the authorities of the state of her relationship with AN, which atthat time was abusive. To that end, Ms. Allard detailed the abuse she later suffered in her relationship with AN when he was older. Shegave examples of events of this abuse. [106] There is no notation by the investigating officer that Ms. Allard was sexually assaulted by AN at any time. In her statement, Ms.Allard described her subjective perception of the initial sexual contact with AN.

She mused about her “stupid selfish Mrs. Robinsonego.” In her extended commentary I find Ms. Allard minimized her actions and provided justifications for what she knew wasinappropriate conduct. She talked about how “nice” it was to be held by AN, who found her desirable and attractive. Throughout herstatement, Ms. Allard justified her relationship with AN by discussing her lack of self-esteem during the time and her desire to be loved.At no time did Ms. Allard suggest her sexual activity with AN was non-consensual. [107] In the statement, Ms.

Allard recalled that she and AN were playing around before the incident in the bedroom. AN was ticklingher and, in Ms. Allard’s words, they were “wrestling around.” This scenario aligns with AN’s memory of them playing in Ms. Allard’shouse by chasing one another. [108] Although Ms. Allard felt the “tone” changed and was uncomfortable with the situation, by the comments made by Ms. Allardon her state of mind during this incident, Ms.

Allard was struggling with her attraction to AN. [109] She then went into her bedroom after which AN “jumped” into her room and “tackled” her onto her bed while tickling her.Again, consistent with their playful and physical relationship. While “wrestling” on the bed together, Ms. Allard described how AN thenstopped and “suddenly” kissed her. Ms. Allard recalled that she pushed him away and they stared at each other. AN then “leaned downand kissed her again.” They then engaged in sexual intercourse. In AN’s testimony he recalled Ms.

Allard holding him close and that hekissed her neck. [110] Therefore, considering the totality of the evidence at trial, including the investigative report of Detective Weir, the child welfarereports (subject to my comments on reliability below) in which direct observations are made of the close relationship between AN andMs. Allard from 1990 to 1992, the evidence of AN, and the entirety of Ms. Allard’s written statement, I am not left in a state ofreasonable doubt on this issue. I am satisfied that Ms. Allard subjectively consented to sexual intercourse with AN. [111] I also find Ms.

Allard’s statement is not vague when it comes to the details of her relationship with AN. I do however find thatMs. Allard’s statement is less detailed when it comes to the timing of events. Even so, I am satisfied when looking at Ms. Allard’sdescription of timing together with the documentary evidence of when certain events occurred that totality of the evidence reveals timingof these events.

The documentary evidence and Judith Weston’s evidence [112] The CFS documents relating to AN were admitted under the common law business records exception to the hearsay rule asoutlined in Ares v Venner, [1970] SCR 608, (SCC). In that case, the Supreme Court admitted hospital records, whichincluded notes made contemporaneously by nurses who had personal knowledge of the matters recorded. In accordance with their duties,the nurses were required to make such notations. Once admitted under that exception, documents are admitted for the truth of its contents

subject to any challenge made of the accuracy and reliability of the notes. In the end, it is my role to determine weight and probative value of that evidence. [ 113 ] Counsel for the defence submitted that the documents were unreliable because they appeared to come from a CFS file without any evidence of whether that file was completely reproduced. In other words, defence suggested there may be other documents, not admitted, that could shed light on the relationship between AN and Ms. Allard. Counsel also suggested Ms.

Weston’s evidence on the general duties and supervisory functions of case workers could not speak to Ms. Allard’s actual duties and responsibilities at the time of the offence. [ 114 ] I find the reliability and probative value of the documents are not impacted by whether they came from a complete or incomplete CFS file. Most of the documents admitted stand on their own, in that they are reports required to be submitted by employees of CFS in the course of their duties. These documents are also dated, and, in many instances, each notation is separately dated by the recorder.

For the most part, the notations are based on direct observations or conversations the recorder had with other employees within the child welfare system. There are two exceptions to this, the photograph of AN and the letter written by AN. [ 115 ] The photograph taken of AN is undated. There was no evidence when that photograph was taken other than a general indication by Ms. Weston that the case worker was required to document the young person under their care. AN in looking at the photograph became flustered and commented that it looked like something “she” would have taken.

In any event, I do not find the photograph adds to the evidence that is already there that AN was thirteen years of age when he came to Hull Home. [ 116 ] The letter written by AN and identified by AN as his handwriting when he was younger is also undated. However, reference is made in the dated documents of this letter as well as notations on the actual incident referenced in that letter. Again, the letter does not add to the evidence already there. [ 117 ] In terms of the content of the documents, I find in many respects the documents confirm the information contained in Ms.

Allard’s statement and AN’s testimony. This alignment between events described in Ms. Allard’s statement and in AN’s testimony assists in confirming the timeline of the events and the steps taken when the closeness of the relationship between Ms. Allard and AN was questioned. [ 118 ] Some of the notations are not just commentary but opinion of the recorder, and I find the probative value of such opinion to have limited relevancy except in those instances when the notations confirm comments made by Ms.

Allard in her statement or in the evidence of AN. [ 119 ] There are also notations in the contact notes and in the Information Consolidations regarding concerns with the relationship between AN and Ms. Allard. I find these third-party comments, where there is no source for these comments, have no probative value. For instance, the June 15, 1992 notation in Ms. Letendre’s Information Consolidation report is an example of what I would call rumours of the sexual relationship. However, there are instances where information regarding concerns over Ms.

Allard’s relationship with AN arise from direct observations of the recorder or direct observations from the person the recorder is speaking to at the time. This information does not go to prove the fact of such a relationship but is part of the context of the case. Also, where Ms. Allard references these concerns in her statement or AN in his testimony, these notations act as confirmation of these concerns being raised. [ 120 ] Moreover, there are notations made in the documents regarding AN’s disclosure of the sexual relationship particularly in 1998.

These prior consistent statements cannot be used for the truth of their content. They can only be used for the limited purpose of understanding how the allegations were disclosed and to assist in the assessment of the credibility or truthfulness of AN’s evidence: R v Dinardo , 2008 SCC 24 at paras 34-38 ; R v Fast , 2020 ABCA 157 at para 40-41 . In any event, as indicated earlier, I find AN to be a credible witness. [ 121 ] There are also instances where AN denies an inappropriate relationship with Ms. Allard and notations where Ms. Allard also denies this. These denials are consistent with Ms.

Allard’s statement that she and AN were hiding the true nature of their relationship from the CFS and Hull Home authorities. [ 122 ] I accept that I must carefully scrutinize the notes of the investigation or file review done by Ms. Weston in 1998. Some of the information on which she based her investigation is from other people about their own recollection of historical events. Ms. Weston’s notations may be accurate, in that she is accurately recording what others are telling her, but that accuracy does not speak to the accuracy of the narrators’ memory or the narrators’ opinions.

I therefore prefer the notes which were recorded at the time or made contemporaneous to the events. [ 123 ] For instance, I find the screening document Ms. Weston generated is merely repetition of information she gleaned from the file or from the investigating officers. That document has limited probative value as does Ms. Weston’s child abuse referral/investigation report dated October 11, 1998, and Ms.

Weston’s Infoback dated November 10, 1998. [ 124 ] Still, when it comes to facts such as AN’s date of birth of January 7, 1976 or that AN was placed in Hull Home in late 1989 when he was thirteen or when he came under permanent guardianship December, 1990, I accept those dates as found in Ms. Weston’s notes. Also, where Ms. Weston’s notes are confirmed by other reports from the relevant time, I accept those notations as well. [ 125 ] Ms.

Weston’s evidence on the general duties and obligations of case workers highlights the expectations of those people working within the child welfare system at the time covering the Indictment period. Ms. Weston worked within that system and is well- versed on case worker responsibilities. Ms. Allard in her statement refers to herself as a childcare worker. Although on the evidence Ms. Allard is not directly employed by Alberta Family Services, I accept that there are similar core responsibilities and obligations that underline all childcare workers.

During the relevant period, did Beverly Allard touch AN, a young person, for a sexual purpose?

[ 126 ] I am satisfied that sexual intercourse is an activity fulfilling the prohibited act requirements of the section. Such activity with a young person is touching for a sexual purpose. [ 127 ] I accept AN’s evidence that he began a sexual relationship with Ms. Allard as described by him, and as admitted by Ms. Allard in her written statement to the police. AN’s evidence on his age is not clear, but as I will discuss later in these reasons, there is other evidence, particularly Ms.

Allard’s statement to the police together with the documentary evidence that confirm their sexual relationship started in 1990 when AN was fourteen years of age. [ 128 ] In Ms. Allard’s statement she met AN in September 1989 when AN was in secure treatment at Hull Home. According to Ms. Allard, a client would be in that program for seven to eight months. Soon after their first sexual encounter, according to Ms. Allard’s statement, AN was transferred from secure treatment to the day program. The documentary evidence provides an accurate estimate of these events. In September of 1989 AN was thirteen years of age.

AN entered the day program on April 17 1990 when he was fourteen years of age. This time estimate aligns with Ms. Allard’s timing as found in her statement. Based on this evidence, I am satisfied that Ms. Allard and AN’s first sexual activity of sexual intercourse occurred no earlier than March 1, 1990, and no later than April 17, 1990. [ 129 ] AN testified that their sexual relationship lasted for years. I find this evidence to be non-specific and on its own does not provide proof beyond a reasonable doubt that sexual activity occurred after the first event in 1990. However, Ms.

Allard admitted in her statement that she had sexual intercourse with AN two to three times in the following year. Based on this evidence and AN’s testimony, I find Ms. Allard and AN had sexual activity as described under s. 153 in 1991 when AN was a young person of fifteen years of age. [ 130 ] I further accept AN and Ms. Allard’s evidence that in 1992, AN impregnated Ms. Allard with their first child. Ms. Allard in her statement suggested this happened months after AN turned sixteen years of age.

However, based on the birth of their child on November 9, 1992, I find that the child was conceived no later than March 30 of 1992, and no earlier than February 1, 1992. [ 131 ] Counsel for the defence submitted that there was no reliable evidence that AN was the biological father of the child born on November 9, 1992. Counsel particularly pointed to a lack of DNA or expert evidence on the issue. He also referenced the lack of a birth father’s name on the registration of live birth. Finally, counsel suggested that Ms.

Allard, who admits in her written statement that AN was the father of her child, was unclear and vague when she said this. In other words that Ms. Allard did not know who the father was. [ 132 ] I find there is ample evidence on which I can draw an inference that AN is the biological father of the child which Ms. Allard gave birth to on November 9, 1992. First, I accept the evidence of AN that Ms. Allard told him he was the father. [ 133 ] Second, I accept Ms. Allard’s admission that AN was the father as found in her written statement. Ms. Allard’s admission to this fact is far from unclear and vague. Rather, Ms.

Allard makes it crystal clear in her statement that AN was the father of her child. At page thirteen of her statement, Ms. Allard stated she was “3 months along when she told” AN of her pregnancy. AN asked her what she “expected” of him and what she “wanted him to do.” She explained to AN “that as the child’s father I felt he had a right to have input into making decisions about what kind of relationship he would have with his child as well as with me.” [ 134 ] Earlier in the statement, at page eleven, Ms. Allard described when the child was conceived, a moment that AN also recalled in his testimony. Ms.

Allard stated that “a few months after” AN’s sixteenth birthday, AN “came over and once again we slept together. He told me that he loved me and that one day in the future he would find a way to marry me. I told him that he would meet some nice girl his age, realize this was nothing more than infatuation and he would forget all about me. Approximately six weeks later I discovered that I was pregnant.” [ 135 ] This passage directly connects sexual intercourse between AN and Ms.

Allard to the timing outlined in the Indictment when AN was a young person. [ 136 ] The evidence of the sexual relationship between AN and Ms. Allard after the child is born is unclear. In Ms. Allard’s statement, after she disclosed the pregnancy to AN, he spent the next six months “partying” with his friends. It was only after the child was born did AN stay with her a few months to help with the baby. There is no mention of sexual activity during this time other than AN’s testimony that the sexual relationship lasted for years.

This is not enough to prove beyond a reasonable doubt that there was sexual activity after the conception of the child in the early months of 1992. [ 137 ] After 1992, Ms. Allard’s statement focuses on her changing relationship with AN which, according to her, was marked by intimidation and abuse. There is no mention of sexual activity until 1998, when their second child was conceived. This is well outside of the Indictment period. [ 138 ] I therefore find the Crown has proven beyond a reasonable doubt that Ms.

Allard touched AN for a sexual purpose, when he was a young person of fourteen years from March 1 of 1990 until March 30 of 1992 when he was sixteen years of age. [ 139 ] I now turn to whether Ms. Allard was in a position of trust, authority or in a relationship of dependency within that relevant time.

When the sexual activity was committed, was Beverly Allard in a position of trust or authority towards AN or was AN in a relationship of dependency with Beverly Allard? [ 140 ] As indicated in the Audet and RT decisions, there several factors to consider in determining whether the Crown has proven one of the forms of position or relationship between the accused and AN as outlined in s. 153. These factors must be assessed considering what these positions or relationship consist of as found in case law.

The evidence must be assessed through the application of these factors and the law. [ 141 ] Although the forms of positions or relationship are separate considerations, factually whether these positions or relationship were occurring during the time of the sexual activity will overlap. As Justice Pomerance opined in RT , positions or relationships often do

not have a clear end point. However, for purposes of a criminal conviction I must be satisfied beyond a reasonable doubt that any one position or relationship exists during the relevant time. [ 142 ] The overarching factors require me to consider the “age difference between the accused and the young person, the evolution of their relationship and the status of the accused in relation to the young person”. [ 143 ] Justice Pomerance in RT suggested that the larger the age difference between the accused person and the young person, the more likely there is a position or relationship in place under s. 153.

In this case, I find there is a significant age difference between Ms. Allard and AN of almost eighteen years. [ 144 ] Status can also weigh heavily toward a finding of a position or relationship pursuant to the section. In this case, Ms. Allard admits she was AN’s case worker when he was in secure treatment. Ms. Allard described her role as being involved in treatment decisions for AN, which she coordinated and supervised. AN called Ms. Allard his key worker who looked after his treatment needs. As explained by Ms.

Weston, a case worker in the child welfare system had a duty and responsibility to meet the needs of the child under their supervision. The worker was to act as a professional entrusted with the child’s health, wellbeing and care. [ 145 ] I find the role of a case worker fulfills the meaning of position of authority required under the section. I also find Ms. Allard fulfilled this role. Ms. Allard was required to make day-to-day decisions on AN’s wellbeing. She oversaw his treatment and therefore had the ability to shape AN’s future.

She also had the ability to determine how AN was treated in Hull Home by bestowing on AN good conduct points. [ 146 ] Although Ms. Allard was not AN’s only worker, I find she was in a formal position of authority towards AN, in accordance with her statement, at the time of the first sexual intercourse in March or April of 1990. [ 147 ] Even after AN was transferred from secure treatment where Ms. Allard was working in April of 1990, I find Ms. Allard continued to have a supervisory function toward AN. For instance, according to the CFS documents on September 30, 1991, Ms.

Allard participated in a meeting to discuss AN’s permanent placement. This status is also earlier confirmed in the summer of 1991, when Hull Home authorities set out a time

schedule to formally reduce the contact between AN and Ms. Allard over concerns their relationship was too close. [ 148 ] I pause to remark that in some of the CFS documents Ms. Allard is called AN’s “volunteer.” In other notations, she is called his “case worker.” This is consistent with AN’s transfer from secure treatment, where Ms. Allard was working, to the day program. AN testified that this volunteer designation allowed Ms. Allard to spend time with him. It is also consistent with Ms.

Allard’s description that she was an employee of “William Roper Hull Child and Family Services Association.” In other words, Ms. Allard was not directly employed by CFS. In any event, whatever the label, I am satisfied, based on a totality of the evidence, that Ms. Allard was in a position of authority towards AN until she resigned from her role as case worker at Hull Home in October of 1991. [ 149 ] Overlaid on this position of authority is Ms. Allard’s position of trust towards AN, which I find covered the entire time in which Ms.

Allard and AN engaged in sexual activity from March of 1990 to the end of March of 1992. The large age gap and the formal and informal status of Ms. Allard towards AN is indicative of a relationship between them built on trust. AN spoke of Ms. Allard challenging him as a young person and motivating him in a positive way. AN looked up to Ms. Allard as someone who cared and loved him. She gave him the attention he craved and lacked as a young person in the child welfare system. Ms. Allard was a welcoming presence for AN.

She accepted him and he often went to her home. [ 150 ] In the documentary evidence there are notations from 1991 confirming this trust relationship. Although I appreciate that in some instances these are comments being repeated to the recorder of the notes, the comments are consistent with Ms. Allard’s statement to the police and AN’s evidence. For instance, Ms. Allard “helped [AN] through his father’s death and abandonment by mother. Bev is the only person [AN] trusts at this point.” Ms. Allard told another worker that it took a long time for AN to “trust” Ms.

Allard. [ 151 ] I am mindful that there is more to a finding of a position of trust than just evidence AN “trusted” Ms. Allard. Among other factors, such a finding involves, as Justice Pomerance indicated in RT , a “degree of control, influence or persuasiveness” exercised by Ms. Allard over AN, the vulnerability of AN in terms of their intelligence, sophistication, independence, and maturity, and any grooming, pressuring or incentivizing behaviour by the accused. [ 152 ] It is important to note that AN was particularly vulnerable as a young person throughout 1990 to 1992.

His mother had relinquished him to the child welfare authorities when he was young. He had psychological and mental wellness issues as well as substance use concerns. Ms. Allard, as already indicated, influenced AN, incentivized his behaviour at Hull Home, and had a measure of control over AN due to her position and age. [ 153 ] Specifically in 1991, there are observations of the closeness of AN’s relationship with Ms. Allard and the time spent together. Another notation in the CFS documents speaks of the plan to help AN deal with the “loss” of Ms.

Allard’s relationship when Hull Home formally ended their contact with one another. In still another notation, Ms. Allard told the recorder when she resigned in October of 1991 from Hull Home that she was AN’s “advocate.” [ 154 ] Yet, there are notations in the documents, particularly in 1992, that AN was a mature young person. He requested to be discharged, more than once from the child welfare system. In March of 1992, AN was transferred to the Independent Living Program. At one point, he was living and caring for his younger brother. [ 155 ] Unfortunately, this newfound independence did not go well.

AN was often not at home to care for his brother. By May of 1992 AN was evicted from his apartment. He began drinking and in June of 1992 he was admitted to the hospital due to alcohol and drug abuse. He became involved in the criminal justice system. By October of 1992, AN stopped attending school. Even so, Ms. Allard supported AN. She picked up AN from the hospital after his overdose. She advocated for payment of his school fees. [ 156 ] Additionally, Ms. Allard spoke of AN’s “partying” and hanging out with friends after she disclosed she was three months

pregnant. This aligns with AN’s eviction. Again, this is all after March of 1992. I am therefore satisfied that Ms. Allard was in a position of trust toward AN from March 1 of 1990 to March 30 of 1992. [ 157 ] The Crown also submitted AN had a relationship of dependency with Ms. Allard. In his evidence, AN was very candid about his relationship with Ms. Allard. He was protective of Ms. Allard and would stand up for her when the officials at Hull Home questioned their relationship. An instance of this is when Hull Home tried to terminate contact between AN and Ms. Allard in 1991. He also asked to live with Ms.

Allard on more than one occasion. AN was emotionally tied to Ms. Allard to provide for his wellbeing. [ 158 ] All this evidence suggests a relationship based on AN’s reliance and dependence on Ms. Allard to provide him with emotional support. This support was given in the context of a power imbalance when AN was eighteen years younger than Ms. Allard, had emotional and psychological challenges and substance use concerns. Again, the evidence of AN’s maturity belies the fact that AN was not able to manage his affairs without direction and guidance. AN’s youth worker at the time, commented more than once on Ms.

Allard’s support of AN as a key factor in AN’s life. I am satisfied beyond a reasonable doubt that their relationship of dependency occurred throughout March 1990 to the end of March 1992. Did Beverly Allard have the requisite mens rea for the offence? [ 159 ] Ms. Allard in her written statement admitted engaging in sexual activity with AN when he was a young person from as early a

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