R v RL, 2024 ABCJ 9

In the Alberta Court of Justice Citation: R v RL, 2024 ABCJ 9 Date: 20240109 Docket: 220570824Y1 Registry: Edmonton In the Matter of: His Majesty the King Crown - and - RL Young Person Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim or the witness must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Identification Ban – See the Youth Criminal Justice Act , section 110(1). No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act .

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 G.B.N. Ho I. Introduction [ 1 ] RL, a Young Person under the Youth Criminal Justice Act , has been charged with the following offences under the Criminal

Code of Canada : 1. Count 1: Between the 1 st day of October, 2018, and the 1 st day of January, 2019, both dates inclusive, at or near Edmonton, Alberta, did unlawfully commit a sexual assault upon MM, contrary to

Section 271 of the Criminal Code of Canada . 2. Count 2: Between the 1 st day of October, 2018, and the 1 st day of January, 2019, both dates inclusive, at or near Edmonton, 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 MM, a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada . 3. Count 3: Between the 1 st day of October, 2018, and the 1 st day of January, 2019, both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully invite, counsel or incite MM, a person under the age of sixteen years, to touch, directly or indirectly, with a part of the body or with an object, the body of RL, contrary to

Section 152 of the Criminal Code of Canada . II. Evidence of MM [ 2 ] The Complainant, MM, was born in September 2006 and was 16 years old at the time of trial. The Young Person is about one year older than the Complainant. During the period from October 2018 to December 2019, the Complainant was between 12 - 13 years old. [ 3 ] The events in question occurred during the period 2018-2019.

The Complainant met the Young Person in the summer and a relationship over social media developed going into the fall, and they began dating in October. [ 4 ] The Complainant testified that she went to the apartment where the Young Person lived with his parents. She had dinner with his parents and then went to the Young Person’s bedroom. The Parents went to bingo. [ 5 ] The Complainant lay on the edge of the Young Person's bed and did her homework. She stated that he grabbed her waist. She said, “I don’t want to do that; I want – I need to do my homework.” She stated that he wouldn’t stop.

He began pulling off her pants or “just constantly asking me if we can”, which she interpreted as asking her to do something sexual. She said, “No, I don’t want to right now”. She then turned on the TV. [ 6 ] He got on top of her and tried to pull down her pants without asking. When asked what then happened, the Complainant stated, “I don’t fully remember. I think he put his face between my legs” (p. 9, line 36). When asked what he was doing with his face, she said, “He was – I don’t know how to say this – doing oral sex without permission”, (p.9, line 39).

When asked “And could you tell the Court what oral sex means to you”, she responded, “He put his face between my legs, and pretty much, I guess, moved his tongue up and down, tried to like, turn me on; eat my vagina” (p.10, lines 1-2). [ 7 ] When asked what happened after “he put his face between your legs”, she responded: “I kind of froze. I didn’t really know what to do, and then he came up and said he was going to do something different. I said I wasn’t sure. I don’t really want to. And he said that it would be okay and that it wouldn’t hurt and it would be fine.

And then I just said, No, I don’t want to, but then my pants were already down, and then he inserted his dick into my vagina” (at p. 10, lines 5-9). [ 8 ] When asked, “How did it end”, she responded, “I feel like he was just over it and didn’t want to do it anymore. And then he finally got off of me and left the room to use the bathroom” (p. 10, lines 19-20). [ 9 ] The Complainant is not sure if the Young Person ejaculated. She doesn’t think he used protection.

She went to the bathroom and stared into the mirror wondering what happened and then used the toilet. [ 10 ] They met up again after school at the 7-11 because she couldn’t remember the way to his house. It was winter when she went to his house again. There was snow on the ground and she was wearing a winter jacket. [ 11 ] They were again in the Young Person’s room in his parents’ apartment. She was sitting on his bed and he asked her to put her mouth over his penis (p.12, line 14). She said, “I’ve never done it before; I don’t want to. I’m not ready,” (p. 12, line 21).

She said he kept saying “Please, if not now, then when?; please, please” (p.12, line 24). She stated that he then used his hand to force her head down towards his penis (p. 12, line 31). She tried to resist but he was too strong. He ended up taking off his pants and his boxers underneath and continued to push her head there until she gave in by ceasing to resist him, (p.12, lines 27-39). She put her mouth to his penis and put her teeth on it. He said, “maybe next time don’t use your teeth”, even though she did it on purpose (p. 13, line 8). [ 12 ] She saw him again a week later.

They met at the 7/11 and went back to his apartment. No one else was there. They went to his room, and she says she was raped for the last time, (p.14, line 10). [ 13 ] She stated that, even though she was on her period, he still made her have sex with him. He pinned her arms down beside her head and took her pants off and had sex with her without her permission. He inserted his penis in her vagina. She screamed, but no one heard her, (p.14, lines 13-17). III. Evidence of KL [ 14 ] The Young Person’s mother, KL, testified on behalf of the Young Person.

She testified that in the fall of 2018 and 2019, she lived in a 2-bedroom apartment, together with her husband, AL, and the Young Person. One bedroom was occupied by KL and AL. The

other bedroom was occupied by the Young Person. She stated the school the Young Person attended was a 15-minute drive from theirapartment and that the school hours were from 8:30am to 3:30pm. The daily routine would be for the Young Person’s mother to pickhim up after school at 3:30 or so. [15] She also stated that she would play bingo in the afternoons. She stated that AL’s normal routine would be to get home at 5:30or 6:00pm for supper, and stay home and watch TV. AL does not play bingo.

With regard to the Complainant’s attendance at the YoungPerson’s residence, KL testified: Well, I – I don’t recall her being alone in the apartment, but she was there when I would come home from about quarter to 4:00, shewould come and visit. There were… there were times when she would come to the buzzer and I would let her in, and they would – we’djust visit. She would have supper with us. I drove her home a few times. Her mother would pick her up a few times.

And we just had a quietevening at home. [16] KL stated that there was always someone home all the time. [17] KL, under cross-examination, confirmed that there is a 7/11 2 blocks from their apartment and that there were times theYoung Person would be left home alone. KL also confirmed, under cross-examination, that it is possible that there were times that theComplainant and the Young Person were alone in the apartment. IV. Analysis [18] The Defence submits that the W(

D) instruction, required by the Supreme Court of Canada, applies in this case to KL’stestimony. I disagree. In R v Ryon 2019 ABCA 36 at para 49, the Alberta Court of Appeal stated that the W(

D) instruction “applies onlyto exculpatory evidence, that is, to evidence that negates an element of the offence or establishes a defence (other than a reverse onusdefence)”. KL’s testimony relates to general opportunity but does not specifically address the elements of the offences that are thesubject of the charges. [19] The Defence submits that the Complainant’s evidence has substantial inconsistencies and uncertainties that raise a reasonabledoubt.

The Crown submits that the evidence of children should not be subject to the same test for credibility as adults, and that the coreof the Complainant’s complaint has been proven beyond a reasonable doubt. [20] The Defence provided the Court with the decision of the Ontario Court of Appeal in R v S(W) (ON CA),1994 CarswellOnt 63. The Court stated at para. 21: 21. As I understand these two judgments, we must assess witnesses of tender years for what they are, children, and not adults. Weshould not expect them as witnesses to perform in the same manner as adults.

This does not mean, however, that we should subject thetestimony of children to a lower level of scrutiny for reliability than we would do adults. My concern is that some trial judges may beinadvertently relaxing the proper level of scrutiny to which the evidence of children should be subjected. The changes to the evidentiaryrules were intended to make child evidence more readily available to the court by removing the restraints of its use that existedpreviously but were never intended to encourage an undiscriminating acceptance of the evidence of children while holding adults tohigher standards.

With respect, I think the case on appeal illustrates the latter approach. [21] Essentially, this decision indicates that the evidence of children should be scrutinized and not be the subject ofundiscriminating acceptance. To put the decision in context, it is important to note that the Court, at para. 22 of the decision, referred tothe absence of confirmatory evidence or corroboration having regard to “the considerable evidence contradicting the appellant’sallegations. The S(

W) case is distinguishable from the present case because, in the present case, the Complainant’s evidence is, on allessential elements, uncontradicted. [22] The Supreme Court of Canada provided a more fulsome explanation of how the evidence of children should be approached inR v B(G) (SCC), [1990] 2 SCR 30 at para 48: 48.

Dealing first with Wakeling J.A.'s comments regarding the credibility of child witnesses it seems to me that he was simplysuggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not imposethe same exacting standard on [page 55] them as it does on adults. However, this is not to say that the courts should not carefully assessthe credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealingwith children as the appellants submit.

Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimonyshould not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his commentsentirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event withexactitude, this does not mean that they have misconceived what happened to them and who did it.

In recent years we have adopted amuch more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this isa desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but thestandard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. [23] The following principles emerge from this quote:

1. The judiciary should take a common-sense approach when dealing with the testimony of young children and not impose the sameexacting standard on them as for adults. 2. The court should carefully assess the credibility of child witnesses, and the standard of proof must not be lowered. 3. A flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of anadult. 4.

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, thisdoes not mean that they have misconceived what happened to them and who did it. 5. The standard of “the reasonable adult” is not necessarily appropriate in assessing the credibility of young children. [24] The Crown referred to 2 decisions: 1. R v W(R) (SCC), [1992] 2 SCR 122, and 2. R v H(DA), 2017 ABQB 193 [25] W(

R) is a decision of the Supreme Court of Canada which confirmed the approach in B(G), (at para 24-25): 24. The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may bewrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives ofchildren. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like timeand place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.)… 25.

As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that theevidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protectingthe liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for averdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of childrennot from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths andweaknesses which characterize the evidence offered in the particular case. [26] H(DA) is a decision of King’s Bench Justice Michalyshyn, which provided an excellent review of caselaw regardinginconsistencies in the evidence of children. I note, in particular, the following decisions from H(DA): 1. In R v B(B) [2009] OJ No. 2991, Justice Hill stated: 71.

Few witnesses in a criminal trial demonstrate perfect recall. Many provide more than one account of the same event which haveinconsistencies. We expect such features to be part of a child's testimony and, as a general rule, a trier of fact will be forgiving ofproblems in a youthful witness' evidence on peripheral or insignificant matters. 2. In commenting on B(B), Justice Michalyshyn stated: 17. In BB the trial judge was unconcerned for a number of errors in the complainant's evidence.

Even inconsistencies regarding thenumber of alleged instances of sexual touching were "somewhat more significant but by no means fatal to the complainant's credibility".What is fatal, however, is the complainant outright admitting to lying in her testimony; she appeared not to understand what it meant totell the truth when she asked if it was "bad" to have made up certain stories in her evidence. What's more, the trial judge finds that someof the inconsistencies in her evidence went to the core of her complaints. 3. In R v B(HS) 2008 SCC 52 , [2008] 3 SCR 32, Justice McLachlin stated (at para 15): 15.

The trial judge explained his view of why any errors in the complainant's testimony did not undermine her credibility as to the centralissue of whether the offences were committed; he said that much of the testimony was unchallenged, that the inconsistencies andcontradictions in her testimony [page 40] were related to peripheral matters and that frailties in her testimony were attributable to thedifficulty of recalling childhood events.

It is thus reasonable to infer from the reasons that, despite any errors in the complainant'stestimony, there remained a body of credible evidence capable of proving the offences beyond a reasonable doubt. 4.

In R v G(DJ) 2012 ABCA 336, the Alberta Court of Appeal found that the inconsistencies related to peripheral matters, “notessential to the verdict” (at para 22), for example, the sleeping and waking positions of the parties in a tent trailer, what kind of sleepwearthe appellant was wearing. [27] In the result, Justice Michalyshyn held in H(DA) that the inconsistencies in the complainant’s evidence in that case did notaffect the core of the testimony, and accepted her evidence. [28] The Defence raises the following to support the Defence submissions that there are substantial inconsistencies anduncertainties in the evidence of the Complainant: 1.

The testimony of the Complainant that “I can’t remember what he did, but I think he put his face between my legs” does not meetthe standard for proof beyond a reasonable doubt.

2. The Complainant’s in-court testimony included references to anime, being grabbed by the Young Person, being pinned by the Young Person. These were not in the transcript of her interview. 3. The Complainant’s description of vaginal intercourse raises a reasonable doubt as to whether vaginal intercourse was non- consensual. Furthermore, she omitted any reference to kissing in her viva voce testimony. She told the interviewer she was seeing people who weren’t there and hearing voices from people who weren’t there. She made no reference to that in her viva voce testimony. 1.

First Defence Argument [ 29 ] I agree with the Defence that if the only evidence of the Complainant was “I can’t remember what he did, but I think he put his face between my legs”, the Complainant’s evidence would create a reasonable doubt. However, the Complainant’s evidence must be read in the context of her entire evidence and not read in isolation. The Complainant’s testimony, as a whole, indicates she had clear recollection of what was being done to her. Children have different styles of communication and frequently use words or phrases which may have special significance for adults but not for children.

In the context of the Complainant’s evidence as a whole, these words were never intended to convey the entirety of a traumatic and complex experience. This approach follows the common-sense approach directed by the Supreme Court of Canada. 2. Second Defence Argument [ 30 ] In cross-examination of the Complainant, the Defence referred to a Zebra interview of the Complainant in May 2022 and the transcript of that interview.

The Defence read an extract from the transcript and the Complainant confirmed that there was nothing in the extract that was read about doing homework, grabbing her waist, oral sex, the Young Person coming up behind her, and pinning her arms.

Following a voir dire , the Court allowed the Crown on re-examination, to ask the Complainant about prior consistent statements that rebut the allegation of recent fabrication; however, the statements were not admitted for the truth of their contents. [ 31 ] On re-examination, the Crown questioned the Complainant on other extracts from the transcript and confirmed that she had previously stated that the Young Person had pinned her arms to the bed, that she was doing homework when he grabbed her legs, that they put on Anime, that he pulled down her pants, that he forced her to give him oral sex.

She explained that she did not mention kissing the Young Person since it had been over a year since she gave her statement to Zebra. When asked by the Crown why she did not tell the Court about a text message between her and the Young Person’s mother about the Young Person pulling down her pants when she was sleeping, the Complainant replied (August 29, p. 10, lines 26-39): [ 32 ] I did not realize.

I forgot that too, that’s one of the memories I really try not to remember which is also why it wasn’t in my original statement, because after the statement I had read the message and found it, which is why I gave it to the police officer. 3.

Third Defence Argument [ 33 ] The Defence submits that the following evidence from the Complainant’s Zebra interview regarding the first incident indicates her consent to vaginal intercourse, or at least gives rise to a reasonable doubt about lack of consent (August 28, p. 26, lines 36- 41, p. 27, lines 1-15): A: And then after he was like, okay I’m just trying – going to try something else, like, we’re going to do something else. So then he pulled his boxers off, and then I don’t know what was going on. And then he pulled my underwear off, and then he, like – like, spread, I said – he’s like, spread your legs.

I was like, Q: M-hm A: Like, spread my legs. And then he’s like, I’m just going to do something. I’m like, Okay. He’s like, it might hurt. And I’m like Okay. And then penetration. [ 34 ] This portion of the disclosure from the Complainant’s Zebra interview leads me to have a reasonable doubt about the Complainant's lack of consent with regard to vaginal intercourse during the first incident. This does not, of course, excuse the Young Person from obtaining consent for the commission of any other sexual acts. V. Conclusion [ 35 ] I find the Complainant to be a credible witness.

She readily admitted to any inconsistencies in her testimony. Any inconsistencies related to collateral or inconsequential matters and can be explained by the passage of time. Her testimony was detailed and the core of her complaint, with one exception, has been proven beyond a reasonable doubt. My finding regarding reasonable doubt as to lack of consent to vaginal intercourse on the first occasion does not, in my view, affect the Complainant’s credibility.

The same extract from the Zebra Interview, from which the Defence questioned the Complainant, indicates there was no consent prior to commencement of sexual intercourse and that the Complainant did not know what was going to happened until it happened. It may be that the Complainant was merely acknowledging the sequence of events and not consenting subjectively.

However, the Young Person must be given the benefit of any reasonable doubt with respect to that part of the interaction between the Young Person and the Complainant. [ 36 ] KL’s testimony indicates that there may not have been a lot of opportunities for the Young Person and the Complainant to be alone. However, I find that the Complainant’s evidence that the Young Person’s parents left the apartment on the first occasion to be uncontradicted, and that the Young Person was in a uniquely advantageous position to find at least two other occasions when he and the

Complainant could be alone. [ 37 ] I accept the Complainant’s evidence and find, beyond a reasonable doubt, that between the 1 st day of October, 2018 and the 1 st day of January, 2019: 1. the Young Person, without consent, committed oral sex on the Complainant; 2. on a second occasion, the Young Person, without consent, forced the Complainant to perform oral sex on him and invited her to do so; and 3. on a third occasion, without consent, had vaginal intercourse with the Complainant. [ 38 ] The Crown has proven the Young Person’s guilt beyond a reasonable doubt on all charges.

Subject to any Kineapple application for a stay pending appeal, I find the Young Person guilty of all charges. Heard on the 28 th day of August, 2023. Dated at the City of Edmonton, Alberta this 9 th day of January, 2024. G.B.N. Ho A Justice of the Alberta Court of Justice Appearances: N. Power for the Crown J. Radosh for the Young Person