R v AA, 2023 ABCJ 209

In the Alberta Court of Justice Citation: R v AA, 2023 ABCJ 209 Date: 20230927 Docket: 220552673P1 Registry: Calgary Between: His Majesty the King - and - AA Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim and witnesses must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice E.J. Tolppanen This is a written version of the oral decision delivered on July 17, 2023. This written decision is near verbatim from the oral decision. I have added case citations and headings, and have removed identifying information to comply with the publication ban.

Overview [ 1 ] AA is charged on a two-count Information, alleging that: Count 1 : Between the 1 st day of January 2014 and the 31 st day of December 2019, both days inclusive, at or near Calgary, Alberta, did, for a sexual purpose, unlawfully touch directly or indirectly, with a part of the body or with an object, a part of the body of BB, a person under the age of 16 years, contrary to

section 151 of the Criminal Code of Canada . Count 2 : Between the 1 st day of January 2014 and the 31 st day of December 2019, both days inclusive, at or near Calgary, Alberta, did unlawfully commit a sexual assault upon BB, contrary to

section 271 of the Criminal Code of Canada . [ 2 ] By way of

summary, from approximately 2009 or 2010 until disclosure by the complainant of these allegations, BB’s family and AA’s family were close friends, socializing regularly and celebrating together on birthdays and other events. It is alleged that on four occasions when the families (or some members of each family) were together, the accused touched BB – who was then between ages 9 and 14 – in a sexual manner.

Emphasizing inconsistencies in the evidence and highlighting that the touching could not have happened given lack of opportunity to commit the offences and given that others could or would have seen or heard what was happening, the accused argues that the allegation are unfounded fabrications. Elements of the Offences

I begin with an outline of the elements of the offences. Elements Common to the Offences that are not in Issue [3] Elements that are common to both offences and are not in issue are as follows. • Identity of the Accused: The identity of AA as the person alleged by the Crown’s evidence to have committed the offences is wellestablished, is not challenged and is not in issue.

See also Exhibit 1, Agreed Statement of Facts, paragraph 3. • The Identity of the Complainant: That BB is the complainant in respect of the alleged offences is well established, is notchallenged and is not in issue. • Jurisdiction: The events all took place at or near Calgary, Alberta. See Exhibit 1, Agreed Statement of Facts, paragraph 2. • Time Period: It is clear and not disputed that the events took place during the time period specified in the Information; that is, between the 1st day of January 2014 and the 31st day of December 2019, both days inclusive.

Specific Elements of Sexual Interference [4] As to the specific elements of the offence of sexual interference (being count 1), the actus reus is: (1) touching; (2) a personunder the age of 16. The mens rea is also twofold: (1) an intention to touch; and (2) a sexual purpose.

See R v Menjivar, 2010 ABPC 164at para. 22. [5] In respect of the meaning of the words “sexual purpose,” I find guidance in the decision of the Alberta Court of Appeal in Rv Morrisey, 2011 ABCA 150, in which it is stated at para. 21: Touching is done for a sexual purpose if it is done for one’s sexual gratification or to violate a person’s sexual integrity.

In determiningwhether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can, in assessing the mens rea ofthe accused, consider whether the sexual context of the touching would be apparent to any reasonable observer. The “sexual purpose”may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself (i.e.the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accusedcommitted the touching for a sexual purpose).

Specific Elements of Sexual Assault [6] To prove a sexual assault (being count 2), the Crown must prove beyond a reasonable doubt that the accused committedthe actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault “if he touches another person in a sexual way without her consent” (R v J.A., 2011SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the “intention to touch and knowing of, or being reckless of orwilfully blind to, a lack of consent on the part of the person touched” (R v Ewanchuk, (SCC), [1999] 1 S.C.R. 330, atpara. 42).

R v Barton, 2019 SCC 33 at para. 87 [7] The actus reus of sexual assault requires proof of: (

i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It issufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively;the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v.Litchfield, (SCC), [1993] 4 S.C.R. 333, and R. v. Chase, (SCC),[1987] 2 S.C.R. 293.

The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred: see R. v. Jensen (1996), (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), atpp. 437-38, aff’d (SCC), [1997] 1 S.C.R. 304, R. v. Park, (SCC), [1995] 2 S.C.R. 836, at p. 850, perL’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.

R v Ewanchuk, (SCC), [1999] 1 SCR 330 at paras. 25-26 [8] As to the required proof of mens rea for sexual assault, in R v Ewanchuck, the Supreme Court stated at para. 41-42: Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant inorder to satisfy the basic mens rea requirement. See R. v. Daviault, (SCC), [1994] 3 S.C.R. 63.

However, since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defenceof mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch thecomplainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton, (SCC), [1993] 3 S.C.R. 3. As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, orbeing reckless of or wilfully blind to, a lack of consent on the part of the person touched.

See Park, supra, at para. 39.

Age of Complainant, Consent and Mistake of Age are not in Issue [ 9 ] Throughout the time period during which the offences are alleged to have taken place, BB was under the age of 16 (per Exhibit 1, Agreed Statement of Facts, paragraph 4). As such, pursuant to Criminal Code s. 150.1(1) , c onsent is not a defence to either of the alleged offences. [ 10 ] In addition, pursuant to Criminal Code

section 150.1(4) , it is not a defence to either offence that the accused believed the complainant to have been 16 years of age or more at the time the offences are alleged to have taken place unless he took all reasonable steps to ascertain her age.

Mistake of age was not argued by the accused, which is understandable given: • the evidence of all witnesses, including that of the accused, regarding the close and long term relationship between the families; and • the absence of any evidence that, after taking all reasonable steps, the accused mistakenly believe the complainant to have been age 16 or older at the time of the alleged offences, I find there is not an air of reality to a mistake of age defence. [ 11 ] From this, the following specific elements of both alleged offences are beyond dispute. • Age : That the complainant was under the age of 16 at the time is established with respect to this aspect of the actus reus of the allegation pursuant to Criminal Code

section 151 . • Consent : None of this arose from the evidence but to be clear, consent of the complainant and an assertion that the accused lacked knowledge that the complainant did not consent or that he held a mistaken belief in the consent of the complainant are all statutorily- barred defences with respect to both alleged offences. The Trial Issues [ 12 ] The Crown has the onus of proving beyond a reasonable doubt that: • the accused touched the complainant, being part of the actus reus of both

section 151 and

section 271; • the accused’s touching of the complainant was intentional, being part of the mens rea of both

section 151 and

section 271; • the touching by the accused of the complainant was (assessed objectively) sexual in nature, being part of the actus reus of

section 271; and • the intentional touching by the accused of the complainant was (assessed subjectively) for a sexual purpose, being part of the mens rea of

section 151. [ 13 ] The actions of the accused described by BB included the following. • Alleged Incident 1 : The accused touching, gripping and moving his hand and fingers on her vagina, both over and under her clothes, and trying to make her touch his penis. • Alleged Incident 2 : The accused “again” touching her “there,” and moving his hand “up and down, side to side” over her clothes. • Alleged Incident 3 : The accused licking her vagina and attempting vaginal intercourse, during which attempt his penis touched her skin. • Alleged Incident 4 : The accused touching the complainant by grabbing her buttocks over her clothing. [ 14 ] If it is proven beyond a reasonable doubt that any one of these four incidents happened as alleged, I would draw from the nature of the touching, including the part of the body touched, any words spoken, and from surrounding circumstances, the only reasonable inferences to be drawn, which are that the act of touching by the accused upon BB was: (1) intentional; (2) objectively sexual in nature; and (3) subjectively for a sexual purpose.

Therefore, if it is proven beyond a reasonable doubt that the alleged incidents or any one of them happened, I would be satisfied that these three elements of the offences are proven beyond a reasonable doubt in respect of each proven incident. [ 15 ] As such, the trial issue is this: Has it been proven beyond a reasonable doubt that the alleged incidents of touching of BB by the accused – or any one of those alleged incidents of touching – happened? [ 16 ] What follows next is an overview of the evidence, with particular focus on the aspects that are relevant to elements of the alleged offences that are at issue.

Note that merely because I have not mentioned some aspect of the evidence or the arguments advanced does not mean that I have failed to consider it. I have carefully reviewed all of the evidence presented, including the v ideo recorded statement that was admitted into evidence pursuant to

section 715.1 of the Criminal Code after a pre-trial application (being Exhibit 2) and the corresponding transcript (being Exhibit 3). I have considered all of this evidence , along with all of the arguments advanced by the Crown and by counsel for AA. Evidence

The Crown’s Evidence [ 17 ] The Crown’s evidence included a video recorded statement in which BB, then age 17, was interviewed by the police regarding the acts complained of and which, following a voir dire , was admitted into evidence pursuant to

section 715.1 of the Criminal Code with no objection by defence counsel. The DVD of the recording is trial Exhibit 2 and a transcript of the recording is trial Exhibit 3. [ 18 ] The Crown’s evidence also included BB’s voir dire testimony, which was admitted into the trial on application of the Crown and with no objection by defence counsel, and the trial testimony of BB’s mother (BM) and her father (BF). Video Recorded Statement [ 19 ] The complainant’s video recorded statement was taken on May 11, 2022 in a small room with two living room chairs and two small tables.

The statement consisted of a Calgary Police Service detective’s interview of BB, which began when the detective and BB entered to room at 1:58pm (using the date and time indicated on the video) and ended when they left the room at 2:48pm. The detective left BB alone in the room from 2:29pm to 2:37pm. [ 20 ] At the outset, the detective advised BB that the interview was being recorded.

She then made some introductory comments, including explaining the importance of telling the truth and describing the question/answer interview process (e.g., the need for detail and the importance of not guessing at answers). [ 21 ] In the video recorded statement, BB provide the following description of the alleged incidents and surrounding circumstances, which I will summarize by topic. Note that in this statement, BB generally refers to the person who allegedly touched her only as “he.” Given that identity is admitted, in this

summary I will sometimes refer to this person as the accused or AA. Background • In BB’s family are her parents, her brother and herself. • BB’s family had lived in a [Calgary neighbourhood] apartment, then moved to a house in [another Calgary neighbourhood]. • In the accused’s family are the accused, AA, who BB described as [physical description].

She stated that AA is married to AS and they have one daughter, now age [redacted]. • Her family had known the accused’s family since the time they lived in the apartment, being when she was around four or five years old. • She was age nine when her family moved away (referring to moving from the apartment). • As to the disclosure of the alleged incidents, she stated that she was “ready to finally, like, tell someone,” so at the end of March or beginning of April (which would have been of 2022), she told her friends about what happened.

Until then, she was scared no one would believe her or people would change the way they looked at her. After telling her friends, she told her parents. Alleged Incident 1 • BB stated that “the first time that it happened,” BB’s family were in the process of moving from their [Calgary neighbourhood] apartment to a house in [another Calgary neighbourhood]. • Her parents had a friend, being the accused, who lived in the same apartment complex. As there was no one to care for BB and her brother, the two went to the accused’s apartment to play with his daughter.

BB’s brother and the accused’s daughter were around the same age, being [ages]. BB stated also that the accused’s daughter was “[redacted] years older [than her brother] or something.” • BB stated that, in the living room, she was talking to the accused and he told her to sit on his lap. She did not know what to do.

She stated that he put his hand “like here” (seen in the video recording to be gesturing with her hand over her vagina area) and it was “uncomfortable.” She also stated that she felt “really uncomfortable.” She stated that, he “held his hand there” and also that, “he just kept it there.” She later stated that his hand was “just kinda, like, gripping onto it.” The touching was over her clothes. When asked by the detective, she stated that the body

part is named “vagina.” • Her brother and the accused’s daughter were playing in the daughter’s room. BB left to go play with them. The daughter had a toy that BB wanted to play with. • The accused followed BB into the room. She described what happened in the daughter’s room as follows. o He started touching me and “like, he went inside my pants and stuff;” “he, like, got inside my pants.” o I was just playing and “he, like, opened my pants and he was, like, don’t tell anyone, like this is good.” o He kept “playing with me” on my vagina. o “He was, like, trying to pleasure me, I guess. But I didn’t like that.” o He was using his fingers; moving them up and down; stroking it.

o His hand was “just like moving.” o It was “inside” her body. o I didn’t say anything. “I was just in shock ’cause I didn’t know what was happening.” o Her brother and the accused’s daughter were playing on the bed, but they didn’t see anything. o Next, he said he wanted to go to the washroom. BB sat there. He asked her if she wanted to come and she said “no.” o BB stated that she got up because she wanted to leave. The accused stopped her and he “pulled down his pants. And, like, I saw everything.” o He “pulled his pants down and I saw, like, his penis.” o He said “do you want to see how it works?

Or something.” o Without specifying when during the incident this happened, BB stated that the accused grabbed her hand to make her touch his penis, but she didn’t. o At the end, the accused pulled his pants up and went to the washroom. BB stated that she then sat back on the bed with the others.

Alleged Incident 2 • While initially stating that she did not remember “the second time,” she described her memory of an incident when “we [being BB, her parents and the accused’s family] went to a show-home together.” She stated that the accused’s family was looking for a house and BB’s family wanted to help, so they all went to a show-home, which was in [a Calgary neighbourhood].

She stated that the accused “took me to the laundry room and just started, like, touching me there too,” which she then stated was the “second time.” She told the detective that on this occasion, “we were just like walking around [meaning the show-home]” when the accused “then he, like, pulled me into the laundry room and then, like, just started touching me again.” She stated that he put his hands on top of her clothes near her vagina and “just started, like, moving it.” Demonstrating by motioning with her hand and fingers, she stated that the accused, moved his hand “up and down, side to side.” • At this time everyone else was outside of the laundry room talking.

She stated that she tried to get out but he pulled me; “he was, like, ‘no, don’t leave.’” But she ran to her parents. She said nothing and nobody asked her anything. The accused just started talking to her parents and “I go with the kids.” • BB stated that she was “probably around the same age, like, nine.” Alleged Incident 3 • BB described her recollection of another incident that she stated took place at her home on her tenth birthday while she was in her bedroom playing her piano and waiting for her friend to come.

All the parents were in the living room downstairs, and her brother and the accused’s daughter were in her brother’s room, which is next to hers. • She initially stated that the accused went upstairs to her bedroom and “pulled down his pants and, like, tried to, like, put it inside me.” • When later asked by the detective to tell her everything that happened that time, BB stated the following. o She was wearing a dress with shorts underneath, which the accused pulled down and, “he started, like, licking my vagina.” Her shorts were at her ankles. o In terms of body positions, BB stated that: ▪ she was standing up playing on the piano; ▪ the accused was standing beside her “just, like, going down;” “he, like, bent down and just started, like, licking it;” ▪ he went on his knees and forced her legs open; and ▪ she was standing facing the piano and he was “like...[gesturing by turning her upper body sideways]” and he forced her body to turn towards him. o She then pushed him away. o She told the detective that she stated “stop” and the accused said nothing back.

She pulled her pants up and went back to playing the piano. o She thought he would leave, but he goes behind her and pulls his pants down. She stated that the accused “like, tried to put his, like, penis in” her vagina. He was standing right behind her and she was still playing the piano, because “I didn’t really know what to do during that situation.”

o In terms of body positions at that time, BB stated that: ▪ she was standing playing the piano (which she demonstrated by holding her hands up as if playing a piano); and ▪ the accused was standing right behind her. o BB stated that, in trying to put his penis in, the accused lifted her dress up, and she felt it but she “pushed myself away because I knew what he was trying to do.” She looked behind her and saw the accused’s penis was out. o She stated that the accused was lifting her dress with one hand and was holding his penis with the other. o She stated that she felt the “tip just, like, touch, like, near that area;” o To BB “it just felt like skin on skin contact.” o She stated that before it could go in, she pushed herself away and told him to stop.

He then left the room. o She stood there, not really knowing what do to. She pulled her shorts up. After that, her friend came. o She stated that she did not tell anybody about what happened. Alleged Incident 4 • BB stated that the “last time” happened before “grade 10 before we went [on a trip ] ” when “he just, like, grabbed my butt.” She stated that she was walking in front of him and “he, like, grabbed it.” She demonstrated by gripping with her fingers. It was over her clothes. • She stated that this happened in front of her staircase when no one else was around.

BB [ 22 ] BB also testified in the voir dire that was held pursuant to

section 715.1 of the Criminal Code regarding the admissibility of the video-recorded statement. Her examination in chief was brief. • BB testified that she is now age 18 and lives with her parents and younger brother now age [redacted], in the same Calgary home that they have lived in since [year]. • After confirming that she remembered speaking with the detective, the video recording of the statement (then voir dire Exhibit “A”) was played.

BB testified that, in the statement, she was telling the truth about what happened to her. [ 23 ] The voir dire cross-examination of BB covered a number of areas, which I will summarize by topic. Background • BB testified that between 2015 and 2020, her family had communication and contact with the accused and his family, including at their house, meeting several times, and going to [an Alberta city] .

She thinks that this stopped when COVID happened. • She testified that her family has a good relationship with the accused’s family; they have known each other a long time; and her parents are really close to the accused and his wife AS. Alleged Incident 1 • BB testified that the first incident happened in the accused’s small and messy one floor apartment when she was age nine and he was looking after her while her parents were moving their family to a new house in [a Calgary neighbourhood] .

She recalled it was at the beginning of the year, January or February, but could not recall the day of the week. • She testified that she was there with her brother, the accused and the accused’s daughter. She also recalled that there were “two old people,” who were the parents of either the accused or his wife. • She agreed with counsel that she had stated that her brother (BA) and the accused’s daughter (AD) were in the bedroom, having seen them go in there and hearing them playing, and that the events happened in the living room.

She testified that she could not see into this bedroom from the living room because of the wall and where the bedroom door was positioned. She testified that the bedroom door was open. • She stated that she could see the older people, who were at a small table near the kitchen. She thinks they could see her. • She was in the living room talking with the accused, and thinks she was singing while BA and AD were in the living room. The

other children left the room and the accused told her to come sit with him. She felt “kind of stuck there for a couple minutes” and then she decided to go to BA and AD.

BB testified that during this time: o She and the accused were both facing the tv and his face was behind her. o She agreed that he immediately put his hand “to where [I] said he did,” being “around my vagina.” o It was not there the whole time “because I tried to push his hand away.” o She tried to push his hand away “because I felt uncomfortable” when he “started touching me.” o When asked why she did not “choose to get off his lap, she replied “I did after like five minutes because he would just hold me there.” She testified, “he put his hands around me so I couldn’t move.” o She does not remember if she said anything. o She testified that the two older people were talking. • After she got off his lap, she went straight to the bedroom with BA and AD, where she agreed that they were on the bed playing.

As to the events next, BB testified as follows. o The accused followed her to the bedroom. o She could not remember what he did first. o She agreed with counsel that that “he came in and started to touch [me].” o From where she was sitting on a really low chair playing with a toy, she could touch the bed. She could directly see the BA and AD playing on the bed. o She agreed that she had said that the accused, “went inside my pants…in my vagina.” She said he was sitting beside her on the floor.

She testified that she was wearing jeans, which the accused “opened…and then put his hand inside.” o When asked how he could pull down his own pants while on the floor, she replied, “he stood up after [she] wanted to get up” and “then he blocked the door and that’s when he pulled his pants down, so he was standing up.” She said that she cannot remember what she did at that point. o She testified that, with the door open, from the corner of the bed, one can see outside of the door into the hallway, which led to the door exiting the apartment and to the washroom door on the right. o She remembers him asking her if she wanted to “see how it worked” because he was going to go to the washroom.

He had pulled up his pants, and was trying to bring her with him by pulling on her arm. They were outside the bedroom and she did not want to go, so she ran back into the bedroom. She recalls that he left and went to the washroom, and she was sitting on the bed with the kids. Alleged Incident 2 • BB testified that, when she was age nine, her family, the accused’s families and another family were at a show-home in [a Calgary neighbourhood] to help the accused’s family look for a house.

As to what people did while there, she testified that the adults were looking around, with the kids – she estimated there to have been four kids – running around and playing all over. • She agreed that she stated that AA pulled her into the laundry room of the show-home. She testified that he pulled her with his hands on her arms. She testified that he did not hurt her but he was “forceful” and she was “really uncomfortable.” She agreed she did not make any sound; she tried to pull away but he would not let her. • She estimated that they were one or two metres from all the adults who were in a group just talking.

She thinks there could have been five or more adults. • She described that show-home as being medium-sized and two stories, with the laundry room being to the left of the bottom of the stairs to the front door. The laundry room was small with one door you open wide. Inside there were washing and drying machines. The room could fit at least four people. He left the door open. • In describing his touching of her, she testified that the accused was behind her. She was facing the washing machines. When asked what she did as he was moving his hand up and down, side to side, she testified that she tried to pull away.

He would not let her pull away. He had his arms wrapped around her. • She agreed that she could hear adults talking at this time. She did not try to call out and is not sure why not. She testified that when she left the laundry room: o she ran to the kids who were in a separate room playing; o she probably ran to her parents first but is not sure anymore; o both her parents were there and she did not say anything to them;

o she thinks the accused went to his wife; o she was scared at the time but felt safer with her parents, with whom she stood really close; and o after a couple minutes, she heard the kids and wanted to go play with them. • As to why she did not tell her parents anything, she testified: I don't know. I have a problem with confrontation, even like when I was younger, so I didn't like talking about what I've been through or what's happening to me.

Alleged Incident 3 • BB testified that on the occasion of her tenth birthday at her house: o there were lots of people there; o she cannot remember that it was also a [special event]; o she thinks she remembers seeing a [religious leader] there, but is not sure; and o she does not know how many people were there, but remembers there being more adults than kids. • The incident happened in her bedroom in the afternoon. Everyone was downstairs and the other children were in her brother’s bedroom. She cannot remember how many kids were in his room.

In her room, she started playing the piano because she was bored and was still waiting for her friends. The piano was on a piano stand. She was wearing a “pretty long” pink dress that was longer at the back and shorter at the front.

Under the dress, she had on shorts that were “kind of tight.” She cannot remember if the shorts zippered or buttoned-up. • As to the sequence of events and actions by the accused and her, BB testified as follows. o The accused came into her room. o He pulled her shorts down to her ankles while she was standing. o He was to the side of her, facing her and she was facing the piano. o When he pulled up her dress and pulled down her shorts to her ankles, he started licking her vagina. o He pulled her underwear down with her shorts (she is not sure if, in her previous statement, she said she was wearing only shorts). o He moved in front of her and he pushed her away from the piano, but she was still facing towards it. o He bent down on his knees, with his head right in front of her vagina. o She is not sure how long he was bent down but estimates two minutes. o She continued to play the piano because she was “trying to distract” herself because she “didn’t know what he was doing;” she could still reach the piano with maybe the tips of her fingers. o She did not know if she thought what he was doing was “something right or something wrong.” o She is not sure if he lowered his pants at the time he was in front of her. o She does not know where his hands were. o She cannot remember if she was able to step back with her shorts – which she described as a little bit loose but also tight – at her ankles. o He then got up and went behind her and tried to put his penis into her vagina. o With her shorts at her ankles she went back closer to the piano by two small five-inch steps. o If she were ten inches or a foot away from the piano (i.e., when he had earlier moved her back), she was not sure if she could touch the piano with her hands. o While behind her, she thinks he pulled his pants down because she turned her head around. o He tried to put “it into my vagina” while she was standing. o She agrees that in her statement, she estimated him to be a height of [redacted] and she thinks she was approximately [redacted] tall. o She cannot remember where his hands were but, after being reminded of what she said in her statement, thinks one hand was holding up her dress and the other was holding his penis.

o She kept playing the piano because she was scared. o His penis did not go into her vagina. o When it was put to her that given the height difference, his penis could not go into her vagina, she responded that “he tried” but could not recall how he tried. o She then pushed him away with her hands, while she was still facing the piano. o She felt the tip of his penis touching her on “I think my butt.” o After she pushed him, he left the room, but she did not want to look up from the piano and cannot remember seeing him leave the room. o She cannot remember what she was thinking or what happened after he left the room, but her friend arrived ten minutes later. o She was referred to her statement (page 30/line 12) where she states “I just…I just, like, stand there” and cannot remember if she stood there the whole ten minutes. o She thinks it was after he left that she pulled up her pants. o She thinks the accused went downstairs with the adults. o Her bedroom door was open. o She does not know what she did after she pulled up her pants; all she remembers is that her friend was there after.

Alleged Incident 4 • BB testified that her family went [on a trip] in 2019 or 2020. • She testified that she in her house walking in front of him and “he just touched my butt.” Cross-Examination of BB on her May 11, 2022 Statement [ 24 ] Defence counsel put to BB several passages of her video recorded statement taken on May 11, 2022 (the DVD of the recording is Exhibit 2 and a transcript of the recording is Exhibit 3). • At transcript page 45/line 2-5, BB shook her head no when asked by the detective if the first time “does any part of your body touch any part of his body?” • At transcript page 45/line 12-17, regarding the second incident, the detective asked BB “do you touch any part of his body that time?” and, regarding the third incident, she asked, “does any part of your body touch any part of his body?” To each, BB shook her head no . • At page 45/line 21, the detective asked BB how it felt when the accused is trying to put his penis inside her vagina.

BB replied, “it just felt like skin on skin contact.” [ 25 ] On cross-examination, regarding the first two incidents, defence counsel asked BB, “did any part of your body touch any part of his body?” She answered no . Regarding the third incident, she was asked “did any part of his body touch your body?” to which she answered yes . [ 26 ] At the conclusion of BB’s testimony, the Crown closed its case on the voir dire and defence counsel elected to call no voir dire testimony.

After hearing submissions from the Crown and with no objection from defence counsel, I ruled that the video recorded statement could be entered into trial evidence. The video recorded statement, formerly voir dire Exhibit A, was made trial Exhibit 2 and the transcript of the video recorded statement, formerly voir dire Exhibit B, was made trial Exhibit 3. On application of the Crown and with no objection from defence counsel the voir dire testimony of BB was also admitted into the trial. [ 27 ] The Crown continued its case by calling the complainant’s mother BM and then the complainant’s father BF.

BM [ 28 ] On direct direct-examination, BM testified as follows. • BM is age [redacted] and is married to BF. They have a daughter named BB who is age 18 and a son named BA, age [redacted]. • She has known the accused for 12 or 13 years; ever since BF met him when the families lived in the same apartment complex. Accused has a wife named AS. They have a daughter named AD, who is the same age as her children. The families started getting together for occasions, especially if it involved the children, and had meals together. • There was a time when the accused’s family asked for help to look for a house.

BM was working, so BF went with their children. • Another time, BB’s family was moving from [an apartment] to a new house in [a Calgary neighbourhood] . The accused looked

after BB and BA at the accused’s family’s apartment, which was [in the same apartment building ] . She testified that she thinks AS and AS’s parents were there. She was not sure, but testified that BB would have been nine years old. • BB’s family still live in [a Calgary neighbourhood] house, which is three floors (i.e., a basement and a second floor). On the main floor is a bedroom, a washroom, the kitchen and dining room, and an extra open space room. At the entrance, there is a stairway to the second floor and a hallway to the kitchen, the washroom and the extra space.

On the second floor are three bedrooms (including BB’s), the laundry and a washroom. When she was ages 9 and 10, in BB’s bedroom there was a bed, a table and chair for her studies, and toys. • When BB’s family moved into the house, there was a special event, being a [special event] and also BB’s tenth birthday celebration. This was in [month] 2014 (per Exhibit 1, the Agreed Statement of Fact, paragraph 5). In attendance were about ten people, including the accused, AS and AD. After the [religious leader] blessed the house, there was eating, chatting and having fun.

The children were upstairs on the second floor in BA’s bedroom or in the tv room. • In September 2019, BB’s family went on a trip [redacted] . The accused’s family, being the accused, AS and AD came to BB’s family’s home to send them off. BB was there. • After speaking with BB (referring to BB’s disclosure to her parents of the alleged circumstance described earlier), BM phoned AS’s number and told her what BB “told us” and that is was the “husband who did it” to BB. AS’s telephone was on speaker and at some point BM heard the accused’s voice. She heard the accused laugh, but he was then quiet.

This call was on April 30, before the BM spoke with the detective on May 11, 2022. • BM recognized the four photographs appended to Exhibit 1, being the Agreed Statement of Facts. She testified as follows. o Photograph 1 shows, from left to right, BM, the [religious leader] and BB. o Photograph 2 shows the [religious leader] and shows BB sitting on her bed in her room. Behind the [religious leader] is the door to a common washroom for BB and BA. To the right is BA’s room. From BA’s room, one cannot see into BB’s room. o Photograph 3 shows BB with BM and BF standing next to her, and friends.

The accused is the person holding the child, being BA. AS is beside the accused. o Photograph 4 shows the same as Photograph 3. [ 29 ] On cross-examination, BM testified as follows. • The two families were close friends, spending time together on special occasions. • At the time of the move to [a Calgary neighbourhood] , she asked the accused’s family to take care of BB and BA. She later testified that AS may have offered, and that she believes that AS stated that AS, AD, AA and AS’s parents were at the apartment. • This would have been at the beginning of the year, either January or February of 2014.

It would be the possession day of the new house because BF was at the house to receive the house keys. • Referring to Photograph 2 of Exhibit 1, being the Agreed Statement of Facts, BM testified that the table with the red strip is the table she referred to earlier as being for BB’s studies.

She testified that upon opening the bedroom door, there is a direct view of the bed and to the right is this table. • On the left side of the upstairs is the open space room [redacted] with a table and couch for watching tv. • During the accused’s family’s visit before BB’s family’s trip [redacted] , they sat in the kitchen eating and talking. At one point, the accused walked towards the hallway, which was where the children were playing.

BF [ 30 ] On direct examination, BF testified as follows. • He lives in [a Calgary neighbourhood] with his wife, BM, and their two children BB, age 18, and BA, age [redacted]. • He met the accused and his family when the two families lived in the same apartment building.

The two families became pretty close, socializing and going to parties and to each other’s homes. • The day that BB’s family moved to [a Calgary neighbourhood] , the accused’s family watched BB and BA, after which he picked them up. • After BB’s family moved to [a Calgary neighbourhood] , the accused’s family was looking for a house, so they went with them to see show-homes in [a Calgary neighbourhood] . Present also were the accused, AS and AD, two other families, BB and BA. BM was not there as she was working.

They just wandered around the show-home. • At BB’s family’s home there was, at one point a “double celebration” being a [special event] and BB’s birthday party. It was in 2014 so it was BB’s tenth birthday. They invited lots of friends, including the accused’s family. There were maybe fifteen guests. For the [special event] they went to each room, after which they ate, and the adults chatted in the living room and kitchen on the main floor. The children were everywhere; bedrooms and the upstairs bonus room.

• BF confirms that BB is shown in a pink dress in photograph 3 of Exhibit 1, being the Agreed Statement of Facts, and the accused is shown in the same photograph wearing a plaid shirt and holding a child. • Before leaving for a trip [redacted] , the accused’s family, including the accused, was at their house, possibly to drop AD for a playdate with BA and then pick AD up after a few hours.

BB was there. [ 31 ] On cross-examination, BF testified as follow. • BB’s family’s move to [a Calgary neighbourhood] was January 2014. • Present with the accused’s family for the show-home viewing, were BA, BB, BF and probably two more families. Defence Evidence [ 32 ] The accused elected to call evidence, being the testimony of the accused, his wife AS and family friend AF. AA [ 33 ] On direct examination, the accused testified as follow. • He is employed at a [business] in Calgary, working nights. • He knows BF and his wife BM, and their children BB and BA.

He got to know BB’s family in 2009 or 2010, so has known them for 13 years. They have parties and eat together and do activities together like hiking. • There was a time he was asked to look after BB and BA. • There was also a time BB’s family and other families looked at a show-home with he and his family. In the show-home, he was walking around with his wife. • He was with BB’s family to celebrate a [special event] and a birthday. There were about fifteen people present. • Before COVID, his family hung out and did activities with BB’s family.

After they came back from [their trip] , they called to let them know that BA had been sick [redacted] . After that and because of COVID, face to face interaction stopped and communication was usually only by phone. [ 34 ] On cross-examination, the accused testified as follows. • His family invited BB’s family and other families to come with them to see the show-home. He wanted the opinions of others on the show-home. They were in the show-home less than one hour. His wife was with him the entire time. They were all together with the other invited families.

There were at least seven to eight adults there walking in and out of various rooms in the house. The children, including his [age] daughter, were running around the house playing. A [age] daughter of a friend was watching his daughter. BB was there. • Since October 2014, his work hours were 8:00pm to 6:30am. • When he watched BB and her brother, he and his wife and his parents-in-law were there. • He was at the [special event]/birthday party. • Just before BB’s family went [on a trip] , he and his family went to their house. BB was there.

AS [ 35 ] On direct examination, AS testified as follows. • She married the accused in [year]. • They lived in the same building as BB’s family. They lived on the same floor [redacted] . The families were good friends, for instance, attending AD’s birthday parties and going on road trips together. • The accused’s family looked after BB and BA at their apartment when BB’s family were moving. AA, her parents and she were there. • The accused’s family was looking for a house. They went to a show-home with BB’s family and another family. Present were around seven adults plus kids. She remembers only BF being there.

The other family had [two] children [ages]. AA and AS were together, viewing the room and talking to each other. Other couples were with them. • There was a time when there was a birthday celebration or a [special event] at BB’s family. There were 10-15 people there. • They went to BB’s family’s house for dinner before BB’s family went [on a trip] in 2019.

• BM called her regarding “an incident.” On this telephone call, AS recalls BM was saying that AA touched a “private part” of herdaughter. As to their response, AS testified, “we were in shock, my husband and I, and my husband said, I [could] never do that, I have adaughter.” • During COVID, communication was limited to phone calls or zoom meetings. • BM’s call regarding allegations of touching of BB by AA was the last time AS talked with BB’s family.

The allegations shockedAA and AS. [36] On cross-examination, AS testified as follows. • She knew the other family besides BB’s family that came along to look at the show-home. They were there to provide opinions onthe show-home. There were discussions amongst the adults about the show-home. They were there about an hour. The children wererunning around the house. AF [37] On direct examination, AF testified as follows. • She knows AA and AS; AS since they were [employed together] in [year] and AA since [year].

They are like a family. • In 2014, AF’s family (she and her husband and their two kids) went to look at show-home in [a Calgary neighbourhood] with theaccused’s family. Her [two] children were [ages]. BM was not there, but BF and their children were there. They viewed the show-hometogether and talked about the house. [38] On cross-examination, AF testified that, at the show-home, her family and the accused’s family and BB’s family were alwaystogether. For the entire hour that they were there, the ten of them moved together from room to room.

Legal Framework The Burden of Proof [39] It is important to set out that in a criminal trial in Canada, an accused is presumed innocent until proven guilty. Thisfundamental principle is enshrined in

section 11(

d) of the Canadian Charter of Rights and Freedoms. The Crown must prove the guilt ofan accused beyond a reasonable doubt. This burden, which applies to each element of an alleged criminal offence, remains upon theCrown throughout the trial and it never shifts to the accused. [40] A reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack ofevidence. This threshold falls much closer to absolute certainty than to proof on a balance of probabilities. An accused who isdetermined to be probably guilty must be acquitted.

See R v Starr, 2000 SCC 40 at para. 242; R v Lifchus, (SCC) atparas. 30-39, and R v W.(D.), supra. [41] With the primary issue in this case being credibility, I have considered the application of R v W.(D.), as further interpretedin the Alberta Court of Appeal decisions in R v Ryon, 2019 ABCA 36 and R v Achuil, 2019 ABCA 299. The R v W.(D.) frameworkprovides useful guidance regarding the assessment of credibility of exculpatory evidence within the context of the criminal burden andstandard of proof. It is intended to ensure that the burden never shifts from the Crown.

R v W.(D.) sets out a well-known three-part test(see R v W.(D.), supra, at p. 758), which states: First, if you believe the evidence of the accused, obviously, you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [42] In his article, Doubt about Doubt: Coping with W.(D.) And Credibility Assessment 22 Can Crim. L. Rev. 31, at p. 5, JusticePaciocco outlined five considerations that I found helpful in applying the R v W.(D.) test to this case:

(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether thatevidence is true there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt.

[43] The evidence that is potentially inconsistent with guilt on the counts before the Court is: • the description by all of the witnesses of the number of people present on each occasion of the alleged incidents and theirproximity to where the alleged incidents took place; and • the accused’s shocked reaction and his out-of-court denial during the telephone call from BM. [44] As such, in this case, the R v W.(D.) test narrows to three questions respecting both counts: [45] First, do I accept as accurate: • the evidence of the number of people present on each occasion of an alleged incident and their proximity to where the allegedincident took place, and do I infer from this evidence that none of the incidents occurred; and/or • the evidence of the accused’s shocked reaction and his out-of-court denial, and do I find that his shocked reaction is evidence ofinnocence and that his denial is truthful; in which case I would have a reasonable doubt about the accused’s guilt, and he would be acquitted of both changes. [46] Second, even if I do not accept any of this evidence, do not draw the inference from the presence and proximity of othersand/or do not making the findings about his shocked reaction and out-of-court denial, does any of this still cause me to have a reasonabledoubt about his guilt, in which case he would also be acquitted. [47] Third, even if I am not left with a reasonable doubt by any of this, looking at all the evidence, does a reasonable doubt arisebased on all of the evidence or I am convinced beyond a reasonable doubt of AA’s guilt. [48] In addressing these narrow issues, I draw on the observations, in R v KHT, 2017 ABQB 753, in which Justice deWit stated atpara. 8: In everyday life people make determinations on factual issues based on believing one person or one set of facts over another.

However,the rule of reasonable doubt applies to issues of credibility. Therefore, where a trier of fact is not able to determine who is telling thetruth or whether the offence occurred beyond a reasonable doubt, the criminal burden of proof has not been met by the Crown. Aconviction should never be entered because a trier of fact prefers one witnesses’ evidence over another’s. [49] After quoting the three-part test from R v W.(D.), Justice deWit highlighted the following regarding assessing credibility, anapproach which I consider relevant to this case.

Assessing a witnesses’ testimony requires a judge to consider whether the witness can properly interpret what they have seen, heard orexperienced, whether they have a good memory, an ability to communicate, and whether there are any reasons for them to offerinaccurate information. Inconsistencies and a lack of detail will also be considered by a judge in assessing credibility. A trial judge willalso assess the reliability of evidence based on its plausibility and whether it comports with probability.

A trial judge can accept some,none or all of a witnesses’ testimony and acceptance of testimony only means that a trier of fact will give the evidence some weight whenassessing the issue in question. A judge need not conclude that a witness is a liar or is unreliable in order to reject or place little weighton their testimony.

R v KHT, supra, at para. 10 Child Witnesses [50] In assessing the credibility and reliability of BB’s evidence, both the video recorded statements and her viva voice testimony, Iappreciate that, while she is not a child (she was age 17 at the time of the video recorded statement and was age 18 at the time of trial),she was describing events she experienced when she was ages 9 to 14. My assessment of her testimony differs somewhat from theassessment of the evidence of an adult describing events experienced as an adult.

While I consider her a mature person in terms ofassessing her ability to communicate while testifying, in terms of the observations she made when she was ages 9 and 10, I find helpfulthe approach described in R v CER, 2022 ABKB 636 at paras. 21-23. In my assessment of the credibility of her evidence, I must keep in mind that the evidence of child witnesses is entitled to specialconsideration from that of adults. Children experience and remember the world differently than adults do. Their perceptions of times andplaces is not the same as it is with adults.

Their evidence may lack details in relation to time and place that we would expect from anadult’s evidence. R v W(R), (SCC), [1992] 2 SCR 122 at paras 25-26. While I am to approach the complainant’s evidence with some leniency, because of her age, this does not mean that her evidence escapesjudicial scrutiny. I am still to consider the complainant’s evidence considering possible internal and external inconsistencies. I mustassess her evidence, along with all the evidence before me. And I must consider the possibility and plausibility of her evidence. KHT atpara 16.

Nor does the special consideration I am to give to the complainant’s evidence mean that the Crown is relieved of its burden of provingthe accused’s guilt beyond a reasonable doubt. At the end of my analysis, I can enter convictions on these matters only if I am convincedof his guilt beyond a reasonable doubt. [51] In the respect of this last point, I also find assistance in the observation in R v KHT, supra at para. 16. Although courts will be more lenient with respect to the detail of a child witnesses testimony, their memory regarding the specifics of the

allegation and certain contradictions, must nonetheless be assessed in a manner which comports with the Crown’s onus to prove theircase beyond a reasonable doubt. The allegations against the Accused are extremely serious. However one should not forget the words of Galligan JA in R v FEJ (1990), (ON CA), 53 CCC (3d) 64 (Ont CA) at paras 7-8: Before turning to discuss the admissibility of this evidence, there are some general comments that I would like to make. Sexual abuse ofchildren is a despicable crime. It is not easy to detect and, because it invariably happens in private, it can be difficult to prove.

Usually itcomes down to the word of a child against that of an adult. It is easy, therefore, to be sympathetic with the efforts of those who try todiscover these crimes and prosecute their perpetrators. While there is no scale upon which conflicting evils can be weighed, it should be remembered that, revolting as child sexual abuse is, itwould be horrible for an innocent person to be convicted of it.

For that reason, I think the courts must be vigilant to ensure that the zealto punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction ofthe innocent. [52] As stated, the Crown’s evidence included a video recorded statement, admitted pursuant to

section 715.1 CC, in which BBdescribes the events. As to the approach to be taken with regards to this evidence, I am guided by the Court of Appeal’s decision in R vKWG, 2014 ABCA 124 at paras. 73-77, from which I take the following principles. • The purpose of

section 715.1 is to make participation in the criminal justice system less stressful and traumatic for child andadolescent complainants. • The

section aids in the preservation of evidence and the discovery of truth. • The prior statement, combined with the complainant’s in-court evidence, may well afford a more complete version of thecomplainant’s evidence. • Videotaped evidence forms part of the evidence in chief of a complainant and should, together with the viva voce evidence givenat trial, comprise the whole of the evidence-in-chief of the complainant. • As part of a complainant’s evidence in chief, the videotape evidence is admitted as proof of the truth of its contents and is to betreated in the same manner as other in-court evidence in chief. • The issues to be considered are the assessment of the evidence in context; the existence of any possible inconsistencies in thatevidence as between the video and the testimony in court; and, where the video is to be viewed by the jury in the jury room, a warningnot to give it undue weight. [53] I turn now to an evaluation of the evidence and my findings.

Evaluation and Analysis of the Evidence The Defence Case The Defence Testimony and Findings of Fact [54] I will first consider the credibility and reliability of the defence witnesses. With one notable exception, I accept much of theaccused’s testimony, as I do the testimony of the two other defence witnesses, AS and AF. Most of this testimony was straightforward,corroborated as between each defence witness, corroborated by the Crown’s witnesses, and not controversial or disputed on cross-examination.

In this regard, I find as follows. • The accused’s family and BB’s family had been close friends and socialized regularly starting in 2009 or 2010, when they wereliving in the same Calgary apartment complex. • In 2014, the accused’s family, including the accused, was asked to look after BB and BA at the accused’s family’s apartment onthe day BB’s family was moving to [a Calgary neighbourhood]. The accused, his wife AS, and her parents were present at the accused’sfamily’s apartment.

The accused and AS have a daughter AD, who is now [age]. • When the accused’s family was looking for a house, they and BB’s family, AF’s family and maybe another family, looked at a[Calgary neighbourhood] show-home together. BM was not there. BB was there. There were five to eight adults present, walking in andout of various rooms in the house. There were at least five children present, including AD, who was then age [redacted].

They were allthere for around an hour. • The accused attended at BB’s family house to celebrate a [special event] and a birthday, with about fifteen people being present.See also Exhibit 1, the Agreed Statement of Facts, paragraph 5. • Just before BB’s family went [on a trip] in 2019, the accused and his family went to their house. BB was there. • After BB disclosed to her parents the allegations that gave rise to charges before the court, BM telephoned AS and told her whatBB had told her parents, including that AA touched a “private part” of BB.

This shocked AS and, to AS, appeared to shock the accused,who she recalls saying that he could never do that, as he has a daughter. [55] Specifically as to the occasion when the accused’s family, BB’s family, AF’s family and maybe one other family viewed the

show-home, I have considered the testimony of: • the accused that, for the entire time, he was together with his wife AS; • AS that she and the accused were viewing the rooms and talking; and • AF that the entire group of ten people moved together from room to room for the entire viewing. [56] For the following reasons, I do not accept that for the entire viewing of the show-home, the accused was not ever apart, evenbriefly, from AS and/or from the others in the group. [57] First, I do not find that these witnesses would or could reliably recall such a detail from an ostensibly unremarkable event ofsome nine years ago; an event that would have only become noteworthy to them a year ago. [58] Second and related, with at least ten people present in the show-home (at least five of whom were adults and were there toview and provide opinions on the show-home), I do not accept that anyone was tracking, much less remembering, the comings-and-goings of any one person. [59] Third, in respect of AF’s testimony, I do not find it plausible that the ten people (which would include the children) weremoving together as group from room-to-room for the entire viewing. [60] Finally, I have also considered this aspect of the defence evidence in the context of the other evidence respecting the viewingof the show-home, and, specifically, have considered whether there is credible and reliable conflicting evidence which could justifyrejecting this evidence.

On an appeal from a conviction in a case based upon credibility, Ontario Court of Appeal highlighted theimportance of assessing witness credibility in the context of all of the evidence.

In R v GC, 2021 ONCA 441, the Court of Appeal statedas para. 13: While he [being the trial judge] candidly acknowledged that he could not point to anything in the appellant’s denial that would cause himto reject the appellant’s evidence regarding the first two complainants, he correctly observed the appellant’s evidence was not to beassessed in isolation, but rather in the context of the entirety of the evidence, including but not restricted to that of the complainants. [61] For the reasons I will detail in my later assessment of the Crown’s evidence, specifically BB’s video-record statement and hertestimony, I find that there is credible and reliable evidence that justifies rejecting this aspect of the defence evidence. [62] I may accept all, some or none of witness testimony.

As already set out, I accept most of the defence witnesses’ testimony, butI do not accept the evidence that, for the entire viewing of the show-home, the accused was not ever apart, even briefly, from AS and/orfrom the others in the group, such that he would not have had an opportunity to have engaged in the acts described by BB.

The Presence and Proximity of Others [63] Defence counsel highlights the evidence – which I have accepted – that others, including adults, were present at the time andplace of the alleged incidents, and argues that, given their proximity to the alleged incidents, others could have or would have seen,noticed or heard what was happening. Presumably, the inference sought is that the accused did not commit the offences given the risk ofbeing seen, noticed or heard. [64] I reject the argument that the presence and proximity of others means that the alleged incidents were any less likely to havetaken place.

I agree with the analysis and reasoning of other recent cases that have considered this same argument. In R v Tan, 2023ONSC 3750 it was stated at para. 71: I accept that performing a sexualized internal exam on a patient who was an OB/GYN with one’s wife, staff, and a waiting room full ofpatients nearby would be extremely risky behaviour; that Dr. Tan would have known that it was risky behaviour; and that he had a lot tolose if he got caught engaging in such behaviour. However, I do not accept that this means that it was implausible or improbable that hedid so.

People do knowingly engage in risk-taking criminal behaviour. Even doctors and others who have a lot to lose knowingly engagein risky criminal behaviour. Our criminal courts would not be as busy as they are if people were always deterred from criminal conductby the risk of getting caught and the potential consequences. [65] Similarity in R v SGH, 2023 ABKB 39 it is stated at para. 70: The Defence argues that the incidents were unlikely to happen because the risk of SGH being caught was extremely high, especiallyduring the first incident: other family members were just a few steps away.

In general, I reject this argument. Courts continuouslysee the brazenness or opportunism of offenders including in cases of sexual assaults of minors (see R v BW, (ONSC); R v H (TR), (ON CA)). . For example, the offender in R v FC, 2018 ONSC 561 (FC) assaulted hisstepdaughter 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 hiswife, 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 butteron her vagina 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 five years of age. FC was convicted of two additional offences. All offences happened in close proximity to family members or members of the public(see FC at para 93). See also R v S., 2022 ABPC 267 at para. 32-33 and R v B.J.L., 2023 NSSC 123 at para. 141.

[ 66 ] For these reasons and noting also that the alleged incidents took place in different enclosed rooms or different areas of the residences from the adults, I do not accept that the risk of detection is probative of whether the alleged incidents occurred. The Accused’s Shocked Reaction and Out-of-Court Denial [ 67 ] The evidence related to the accused’s out-of-court denial first arose in the Crown’s case as part of its direct examination of BM, with BM testifying that she telephoned AS and, with the accused listening by speaker-phone, told her what BB “told us” and that it was the accused “who did it” to BB.

BM recalls hearing the accused laugh when BM “mentioned that [the accused] did something” to BB and that he was then quiet. Without objection from the Crown, defence counsel examined AS regarding this call, with AS testifying that BM called about “an incident” and “was saying that [the accused touched] a private part” of BB. She testified that the accused was shocked “during that time,” and stated, “I [could] never do that, I have a daughter.” AS’s recollection was not challenged on cross- examination.

The accused, who had testified prior to AS, was not asked on direct or cross examination about this telephone call. [ 68 ] I accept AS’s recollection of how the accused appeared to react and the words he said. Her testimony was clear, unequivocal and not challenged or disputed. In addition, the telephone call would have been significant to her, and she would have had reason to note and remember both her husband’s reaction to the allegation made by BM and his words. I appreciate that, from BM’s perspective, the accused laughed and was then quiet.

However, BM was not present with the accused; only hearing the accused by speaker-phone, so her ability to observe the accused was limited. She may not have been able to detect that the accused’s laugh was perhaps part of his shocked reaction and the accused may not have said his words of denial loud enough to be heard by BM. So her recollection of the accused’s behaviour during the telephone call is not necessarily contrary to AS’s testimony.

Given all of this, I accept AS’s testimony in this regard. [ 69 ] As to my assessment of the value of this evidence, I find assistance in the decision of the British Columbia Court of Appeal in R v Sanhueza , 2020 BCCA 279 .

Although, unlike here, that case dealt with a Crown-led out-of-court denial by the accused, I find that the admission into evidence of the content of the telephone call – initially by the Crown through BM and then in the defence case – engages the same principles as outlined in R v Sanhueza , and the cases it cites, which are as follows. • A spontaneous statement made in the face of an accusation, when properly admitted, can “yield persuasive evidence of innocence”: R v Edgar , 2010 ONCA 529 at para. 67 , leave to appeal to the SCC ref’d, 33984 (31 March 2011) (para. 27). • A denial may also be an untruthful reaction, motivated by a desire to avoid admitting culpability in the presence of others (para. 27). • In some circumstances, an out-of-court denial by an accused that is limited in detail and untested through cross-examination may attract considerably less weight than testimony.

This is an individualized assessment by the trial judge, necessarily informed by the evidential foundation of each case (para. 47). • Out-of-court denials must be approached by trial judges as they would testimony from the accused and ask themselves whether they believe any exculpatory parts. If so, pursuant to R v W.(D.) , the accused is entitled to an acquittal.

Further to the R v W.(D.) analysis, if the judge does not believe the exculpatory parts, but those portions of the statement raise a reasonable doubt, the accused is also entitled to an acquittal (paras. 25, 28 and 32-34). [ 70 ] For the following reasons, collectively, I do not find that the accused’s shocked reaction to be evidence of innocence, and I do not find that the words he spoke to be a truthful response to the allegations. [ 71 ] First, there was limited information provided about the conversation.

The only evidence regarding the allegation made during the call was that of BM who testified that she told them what BB had told her and BF, and that of AS that BM “called us regarding an incident” and “was saying that [the accused touched] a private part” of BB. In her video-recorded statement, BB told the detective only that she told her parents “what happened.” So it is unclear if, at the time of the call, BM even knew of each of the current alleged incidents, much less whether BM described all of it during the phone call or just made a general statement that there was an incident of touching.

AS’s evidence suggests BM called only about a single “incident” of touching by the accused of a private part of BB.

While a shocked reaction and/or words of denial may be “ persuasive evidence of innocence” without more detail regarding the phone call, including what specifically was being alleged at the time, a shocked reaction and words, “I [could] never do that, I have a daughter” have limited probative value in the context of the alleged incidents before the court. [ 72 ] Second, I find that the accused would have been motivated by a strong desire to immediately deny the allegation so as to avoid, even implicitly by his silence, admitting touching BB while in the presence of his wife and the mother of BB.

This context to the telephone call strongly militates in favour of rejecting the truthfulness of the accused’s words of denial. [ 73 ] Third, a shocked reaction to an allegation of wrongdoing is, at best, equivocal.

A guilty party may just as easily react with apparent shock when confronted about their behaviour as an innocent party. [ 74 ] Finally, I have also considered the probative value of the shocked reaction and the truthfulness of accused’s word of denial in the context of the other evidence respecting the allegation and, specifically, have considered whether there is credible and reliable conflicting evidence which could justify rejecting this evidence.

For the reasons I will detail in my later assessment of the Crown’s evidence, specifically BB’s video-record statement and her testimony, I find that there is credible and reliable evidence that justifies rejecting the truthfulness of the accused’s denials. [ 75 ] On the basis of the cumulative effect of these finding, I reject the accused’s shocked reaction during the telephone call as being evidence of innocence, and I do not find that the words he spoke to be a truthful response to the allegation made during the telephone call.

[ 76 ] In the result: • I accept as accurate the evidence of the number of people present on each occasion of an alleged incident and their proximity to where the alleged incident took place but I reject the inference sought that accused did not commit the offences given the risk of being seen, noticed or heard; and • I accept as accurate the evidence of the accused’s shocked reaction and out-of-court denial during the phone call, but I reject that his shocked reaction is evidence of his innocence or that the words of denial were truthful. [ 77 ] For these reasons, I do not have a reasonable doubt on the basis of the first two stages of the R v W.(D.) analysis.

I next consider whether, looking at all the evidence, a reasonable doubt arises based on the evidence or I am convinced beyond a reasonable doubt of AA’s guilt. The Crown’s Case [ 78 ] The Crown’s evidence consisted of BB’s video-recorded statement, her testimony and the testimony of her parents, BM and BF. I will briefly address the testimony of BM and BF, which was clear, straightforward, dealt mainly with the surrounding circumstances, was largely consistent with the defence evidence, and was not controversial or disputed on cross-examination.

The only other aspect requiring specific comment or assessment was BM’s testimony regarding her telephone call with AS and the accused, which I have already addressed. The Evidence of the Complainant [ 79 ] As I turn now to an evaluation of BB’s evidence, both her video-recorded statement and her testimony . For the following reasons, I found BB to be both a credible and a reliable witness. [ 80 ] First, I find that BB’s evidence was specific and detailed. • She provided a detail chronology of the sequence of events with regards to each of the alleged incidents.

For instance, with regards to the first alleged incident, she described being in the living room, first with BA and AD, and then only with the accused, and then moving to the bedroom, and described the sequence of events there. Similar detail was provided with regards to the second and third alleged incident. • BB was able to recall her and the accused’s words. For instance, she recalls the accused saying to her during the first alleged incident, “ don’t tell anyone, like this is good” as he touched her and then asking her to go with him to the washroom.

She also recalls instances of her telling the accused to stop. • She testified as to the specific actions by the accused, including how he held her and how he touched her. For instance, she testified that while on his lap during the first alleged incident, he put his arms around her so she could not move and, during the second alleged incident, had his arms around her while they were in the laundry room.

She also described in detail the nature of the accused’s touching, including how he moved his hands and fingers when her touched her vagina. • She testified in detail about the position of the accused’s body and his movements as he touched her. For instance, she testified as to being on the accused’s lap in the living room during the first part of the first alleged incident and then of him being beside her on the floor of the bedroom after he followed her into that room.

She also described the accused being behind her while they were in the laundry room during the second alleged incident and described, literally step-by step, the actions of the accused during the third alleged incident. While it was a brief act, she described being in front of the accused when he touched her buttocks during the fourth alleged incident. [ 81 ] Second, her evidence regarding the surrounding circumstances was consistent with and corroborated by the testimony of others and by known facts.

Examples are as follows. • With regards to the time (month and/or year) or the occasion of the alleged incidents and the locations, her testimony was generally consistent with the evidence of other witness (both Crown and defence witnesses) and with known facts.

For instance she testified that: o the first alleged incident was when BB’s family was moving, and she and BA were watched by the accused and AS at the latter’s apartment and, consistent with BF’s testimony, this was in January or February; o the second alleged incident was when her family, the accused’s family and another family were at a show-home helping the accused’s family with a house purchase; o the third alleged incident was at her house during her tenth birthday party, although she did not recall that it was also the occasion of a [special event]; and o the fourth alleged incident was at her house before her family went [on a trip] in 2019 or 2020. • As her tenth birthday was in [month] 2014, she accurately stated that she was age nine during the first two alleged incidents. [ 82 ] Third, the surrounding circumstances and sequence of events she described were, both individually and collectively, plausible.

For instance:

• With regards to the first alleged incident, it is reasonable that BA and AD, being closest in age, went to play in AD’s bedroom, leaving BB alone in the living room with the accused.

It is reasonable that she would go to the bedroom once she moved off of the accused’s lap. • With regards to the second alleged incident, it is also reasonable that, upon leaving the laundry room, she would immediately go to her father or the other children. • With regards to the third alleged incident, it is reasonable that BB would be waiting in her bedroom for her friend rather than be downstairs with the adults or playing the younger children, BA and AD.

That she continued to play the piano as the accused touched her was, in my view, completely understandable given that she was then age ten, did not know what the accused was doing, was scared and wanted to distract herself from what was happening. [ 83 ] Fourth, BB was able to recall her thoughts and feelings during the alleged incidents.

For instance: • In respect of the first alleged incident, she recalls feeling uncomfortable and “kind of stuck” when she was on the accused’s lap and he touched her while they were in the living room, and later “in shock” when her touched her while they were in AD’s bedroom. • In respect of the second alleged incident, she recalls feeing “really uncomfortable” as the accused touched her while there were in the laundry room, and “safer” afterwards when she was with her father. • In respect of the third alleged incident, she recalls not knowing what he was doing or what she should do. [ 84 ] Fifth, BB’s testimony was balanced and was fair to the accused.

For instance, she acknowledged that, throughout, her parents were very close with the accused and AS. In describing the alleged incident at the show-home, she described the accused as forceful but that he did not hurt her. [ 85 ] Sixth, while not so consistent that it appeared contrived or rehearsed, BB’s evidence was, in the main, consistent throughout, even during a detailed and pressing cross-examination.

In response to cross-examination questions, she elaborated on aspects of the video-recorded statement (e.g., she specified that she sat on the accused’s lap), but did not contradict or resile from her video-recorded statement. Her video-recorded statement was internally consistent, but I note that her first description of the third alleged incident was that the accused tired to “put [his penis] inside me,” with her only later in the statement describing what preceded his attempt at vaginal intercourse.

She was understandably uncertain when asked to estimate the duration of time of certain aspects of the alleged incidents, she could not recall that her tenth birthday party coincided with a [special event] and, as addressed next, there were indeed a couple minors errors or inconsistencies in her evidence. All of this I regard as insignificant and demonstrat

[…]