R v JMH, 2023 ABCJ 286

In the Alberta Court of Justice Citation: R v JMH, 2023 ABCJ 286 Date: 20231222 Docket: 220707327P1 Registry: Edmonton Between: His Majesty the King - and - JMH Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify THE VICTIM -OR- THE WITNESS - ARG and JH must not be published, broadcast, or transmitted in any way.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 O.A. Shoyele Table of Contents

Introduction . 2 Findings of Fact 3 Issues . 4 Law .. 4

Summary of Crown’s case . 5

Summary of Defence’s case . 6 Analysis . 7 Actus Reus . 7 Mens Rea . 12 Disposition . 13 Introduction [ 1 ] JMH [the Accused], stands charged as follows, that: Count 1: Between the 1st day of August 2021, and the 4th day of November 2021, both dates inclusive, at or near Edmonton, Alberta, did unlawfully commit a sexual assault upon [the Complainant], contrary to

section 271 of the Criminal Code of Canada ; Count 2: Between the 1st day of August 2021, and the 4th day of November 2021, 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 [the Complainant], a person under the age of 16 years, contrary to

section 151 of the Criminal Code of Canada . [ 2 ] The Crown proceeded by way of Indictment. [ 3 ] The Complainant was 15 years old at the time the within trial commenced on October 26, 2023, which puts her at 13 years of age at the time of the offence. [ 4 ] The trial of the charges was held on October 26, 2023. The Crown called two witnesses, Detective Sonja Wepruk and ARG [Complainant]. Defence elected not to call any evidence.

Findings of Fact [ 5 ] During her testimony, the Complainant adopted her audio and video recorded Zebra Statement, pursuant to s 715.1(1) of the Criminal Code . [ 6 ] The Complainant’s evidence, which this Court accepts, was that she was in a relationship with one JH, the Accused’s nephew; and sometime within the period contained in the Information – i.e., 220707327P1 – had an incident with the Accused, who is her boyfriend’s uncle. [ 7 ] The evidence of the Complainant on the issue of touching, as excerpted from her video recorded statement, admitted under s 715.1 of the Criminal Code and following a voir dire , is found below: A: … He’s gotten really like touchy, personal, flirting with me, trying to control me… my acts, actions … and I’m just scared because he’s really a violent person ‘cause when he does it, he’s usually high or on drugs. [1] Q: Okay.

Well, tell me about some of the types of touching that’s happening. A: … he will sometimes rub my shoulder, or he’ll try to hold my hand. [2] A: (continued) JH [or “the Complainant’s boyfriend”] has witnessed this, but [the Accused] almost like he put his hand right here when I was sitting right beside JH.

Q: Okay A: … and he could tell I was really uncomfortable, and he just kept rubbing there , and it was, it just felt wrong. [….] Q: And then you said to me that [the Accused] put his hand right on your thigh, and your hand was pretty … far up your thigh, show me where it was again. A: Right there [….] Q: Okay. Was JH able to see the Accused’s hand on there? What did JH say?

A: … JH is really scared of his uncle so he couldn’t really do anything but right after, I was like [JH] I was really uncomfortable and he’s like yeah I could tell, I’m so sorry I can’t do anything. [3] [ 8 ] Further, the evidence reveals the following conversation between the Complainant and her interviewer as transcribed in her Zebra Statement: Q: So it sounds like he kind of always wants you to stay around him A: Yeah […] Q: Okay. … he’ll grab your arm, pull you back down to like a seated position. Okay. A: Basically, yeah. Um and then he’ll try holding my hand, it’s really weird. Q: Tell me about that part.

A: Um ‘cause I do smoke sometimes, so sometimes, my, our hand will just be there and he just like rubs it and everything. Ah. Q: Did you just shudder? A: Ah yeah. Q: Okay. Yeah. A: ‘Cause he’s like a 34 year old man. […] A: But yeah, he’ll just rub my hand and try and hold it … [4] Issues [ 9 ] The issues for analysis in this matter are:

(

i) Is there specific evidence to demonstrate that the accused committed: (

a) an identified assault, (

b) which is of a sexual nature such that the sexual integrity of the victim was violated? ( Actus Reus ); and (ii) Is there an intention to touch and a sexual purpose? [5] ( Mens Rea ). Law [ 10 ] Section 265(1) (

a) of the Criminal Code states: “A person commits an assault when […] without the consent of another person, he applies force intentionally to that other person, directly or indirectly.” [ 11 ] Section 265(2) of the Criminal Code reads: “This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.” [ 12 ]

Section 150.1(1) of the Criminal Code provides that: Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 […] or is charged with an offence under

section 271 […] in respect of a Complainant under the age of 16 years, it is not a defence that the Complainant consented to the activity that forms the subject-matter of the charge. [ 13 ]

Section 151 (

a) of the Criminal Code reads: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years […] is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year … [ 14 ]

Section 271 (

a) of the Criminal Code [ Code ] provides: Everyone who commits a sexual assault is guilty of […] an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the Complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year … [ 15 ] In R v Morrisey , 2011 ABCA 150 at para 21 , the Alberta Court of Appeal 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 determining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can in assessing the mens rea of the 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 (ie. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accused committed the touching for a sexual purpose). [ 16 ] Sexual assault is a general intent offence, and the sexual nature of the touching is determined objectively.

Sexual interference is a specific intent offence, and the Crown is required to establish beyond a reasonable doubt that the Accused intended the touching and engaged in the touching for a sexual purpose: R v GLH , 2021 ABPC 271 at para 114 .

Summary of Crown’s case [ 17 ] The Crown submits that the Complainant is a vulnerable, young person; while the Accused, in his 30’s, exhibited a predatory behaviour and preyed on a girl much younger and smaller than him. [ 18 ] The Complainant, ARG, in the Crown’s opinion, is a credible witness who has provided this Court with consistent and reliable evidence about how the Accused repeatedly touched her inappropriately and in a manner that caused her obvious discomfort while she was in a relationship with the Accused’s nephew at this time. [ 19 ] The Supreme Court has indicated that when assessing the credibility of children, courts should not hold them to the same exacting standards as an adult: R v GB , 1990 SCC 113 at paras 28-29. [ 20 ] During her viva voce evidence, the Complainant confirmed that she did not want the Accused to touch her, nor did she give him permission to touch or rub her thigh. [6] [ 21 ] The Complainant was clear and consistent in her evidence that the touching in question involved rubbing of her upper thigh region, and that the touching made her very uncomfortable. [ 22 ] The jurisprudence affirms that the touching of a complainant’s thigh is sufficient to prove sexual purpose.

In R v Bedard , 2006 CarswellOnt 9307 ; aff’d 2007 ONCA 883 , the Ontario Superior Court of Justice held that the accused sexually assaulted the complainant “by placing his hand on her upper thigh under her clothing for a sexual purpose.” (See also, R v Aquitania , 2014 ABPC 108 at para 30 ).

[23] In R v RAS, 2014 ABCA 56 at para 7, the Alberta Court of Appeal affirms the trial judge’s assertion that, “regardless ofwhether the appellant touched [the complainant’s] vagina, his rubbing of her thigh and groin were for a sexual purpose” [emphasisadded].

The Court was clear that touching and rubbing in the upper thigh and groin region can be sufficient to prove sexual purpose. [24] The veracity of the suggestion by Defence that the Accused’s behaviour is simply “awkward” or “inept” arising out of adisability is difficult to ascertain as no details regarding the disability were adduced at trial.[7] [25] Crown submits that the nature of the touching in this case was sufficiently sexual, and meets both the objective standard forsexual assault as well as the subjective standard for sexual interference. [26] Alternatively, the Crown seeks a conviction for the lesser and included offence of assault simpliciter.

Summary of Defence’s case [27] The Defence contends that the sexual nature of the contact between the Accused and the Complainant needs to be obvious andvisible to an outsider.

And in making that determination, this Court has to look at the entire circumstances. [28] In terms of the circumstances of the commission of the alleged offences, the Defence contends that the touching in the presentcase took place outside, directly in front of an observer – i.e., the Complainant’s boyfriend, JH, who is the Accused’s nephew – whodidn’t react – which suggests that the Accused in the case at bar was not attempting to be surreptitious, like the offenders in the cases thatthe Crown had cited.

Defence Counsel notes that the Complainant did not describe being alone with the Accused for any significantperiod of time. [29] Further, the Defence contends that the exact date and number of times when this touching happened is unclear. [30] In her written submissions, the Defence Counsel distinguishes the cases cited by the Crown – Bedard;[8] RAS;[9] andAquitania.[10] She argues that “the conduct of the offenders in those cases went well beyond placing a hand on a thigh, such that theonly reasonable inference was that the offenders were acting for a sexual purpose.”[11] She contends that the details of the casesreferenced by Crown “made it impossible for the courts to conclude that the touching was anything but sexual in nature and that theoffenders had anything but a sexual purpose.”[12] [31] Unlike the cases cited above, the Accused did not make overtly sexual comments or gestures to the Complainant.

TheComplainant’s perceptions are relevant, but this Court must assess all of the circumstances and be wary of speculation in the absence ofdirect evidence. [32] The Defence counsel argues that the Complainant testified that at one time the Accused said to her “it’s okay” and “don’t tellanyone” but she did not specify when these statements were made or in what context, nor provide evidence of any other statements madeto her by the Accused. [33] The Complainant has described incidents where the Accused was alleged to have been trying to control her movements.

Giventhe evidence, the Defence suggests, it appeared the Accused was simply exercising his legal right to decide who is and is not allowedinside his house. [34] In this case there is no direct or circumstantial evidence to support the required inference for a sexual purpose. To findsubjective intent in the absence of evidence would be mere speculation (see R v Abi-Sama, 2018 ONSC 7600 at para 293). [35] She submits that if the Court makes a finding of guilt on both charges, the sexual assault conviction should be stayed pursuantto the Kienapple principle[13] (R v Dichrow, 2022 ABCA 282 at para 61).

Analysis Actus Reus [36] The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of thecontact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that theaccused’s actions were voluntary.

The sexual nature of the assault is determined objectively; the Crown need not prove that the accusedhad any mens rea with respect to the sexual nature of his or her behaviour. (R v Ewanchuk, (SCC), [1999] 1 SCR 330 atpara 25). [37] In the present matter, where the Accused has been charged with the commission of offences pursuant to ss 151 and 271 of theCriminal Code and the evidence before this Court confirms that the Complainant was under the age of 16 years when the alleged assaultoccurred, the provisions of s 150.1(1) of the Criminal Code applies.

As such, subject to subsections (2) to (2.2) of that legislation, “it isnot a defence that the complainant consented to the activity that forms the subject-matter of the charge.” Thus, the third element of theactus reus component of sexual assault is irrelevant in this matter. [38] The actus reus of sexual interference is (

a) a touching (

b) of a person under the age of 16: R v GLH, 2021 ABPC 271 at para112. [39] I will now proceed to consider each of the required elements.

Touching [40] One of the main relevant legal principles for the commission of either of the offences for which the Accused has been chargedis that there is no minimum amount of force necessary to qualify; the force may be violent or gentle: Daniel Brown & Jill Witkin:Prosecuting and Defending Sexual Offence Cases Criminal Law Series, at 34-35 [Brown & Witkin: Sexual Offence Cases]. [41] For sexual assault offence, the touch does not necessarily have to be to a sexual part of the body but must have sexualcircumstances assessed from an objective and contemporary standard perspective: R v Dinardo, 2014 ONCA 758 at paras 4-5; R vLasecki (1994), (AB KB), 163 AR 354 at para 35 (Alta KB). [42] The Complainant’s evidence in this case demonstrates that within the period contained in the charges, the Accused would“sometimes rub [the Complainant’s] shoulder,” or “try to hold [her] hand, and “put his hand” right on the Complainant’s upper thigh in amanner that made the Complainant uncomfortable, while the Accused “kept rubbing” the Complainant’s thigh.[14] [43] The Defence concedes that the evidence confirms that there was touching by contact that took place outside, directly in frontof an observer – i.e., the Complainant’s boyfriend, JH, who is the Accused’s nephew.

Counsel’s concern regarding this evidence relatesto the lack of clarity about the exact date and number of times when this touching happened. [44] Based on the governing case law, the exact dates and number of times are not critical consideration for the commission of anassault. The legal principles governing the issue of exact date as element of an offence demonstrate that time is not essential in the proofof the offence of sexual interference: R v KWG, 2014 ABCA 124.

And neither is the date on which an offence, such as assault, occurredbecause it is not normally an element that is capable of misleading the Defence on the case to meet: R v McGee, 2014 ONCA 358. [45] It is satisfactory that the Crown has identified the range of dates in the charges on the Information that the within proceedingsare based on. [46] Similarly, as indicated earlier, “[there] is no minimum amount of force [whether violent or gentle] necessary to qualify”;[15]as such, a singular touching of the Complainant by the Accused – who was below the age of 16 years at the time the assault occurred –on any specific date within the range of dates in the charges would be sufficient to satisfy this requirement.

Was the contact / touching sexual in nature? [47] Whether or not the assault – i.e., the touching – is sexual in nature is to be determined objectively. [48] In order to make that determination whether a reasonable person would find a sexual element to touching, the followingfactors have been considered as relevant by the Supreme Court of Canada in R v Chase, (SCC), [1987] 2 SCR 293 atpara 11: … Sexual assault is an assault […] which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim isviolated.

The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one:“Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer” […] The partof the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and allother circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant […]The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor inconsidering whether the conduct is sexual.

If the motive of the accused is sexual gratification, to the extent that this may appear from theevidence, it may be a factor in determining whether the conduct is sexual…. [Emphasis added]. See also, Brown & Witkin: Sexual Offence Cases at 35.

The part of the body touched [49] From an objective and contemporary standard perspective, the critical consideration is that sexual assault is complete oncethere has been an invasion of the victim’s bodily and sexual integrity, which could occur in the context indicative of a form ofdomination: R v V(KB) (1992), (ON CA), 71 CCC (3d) 65 (Ont CA), aff’d (SCC), [1993] 2 SCR857. [50] In the present case, the Complainant gave evidence of the Accused trying to control her acts and actions while holding herhands or sometimes rubbing her shoulders.

She also testified viva voce in Court as well as described the physical part of her body thatwas touched and rubbed to the police interviewer in the Transcript, admitted as Exh. 1A, when she stated that the Accused “put his hand… far up [her] thigh.” [51] It is worthwhile to reiterate that courts have also being starkly clear in stating that the touch need not be to a sexual part of thebody: R v Dinardo at paras 4-5. The nature of the contact

[ 52 ] I am satisfied that the abiding case law is clear enough on the legal implications of an accused person touching the thigh of a victim, absent consent as required under the law: R v Bedard ; R v Aquitania ; and R v RAS , 2014 ABCA 56 at para 7 . [ 53 ] This Court aligns itself with the conclusion in the cases cited above where the courts unequivocally confirm that touching and rubbing in the upper thigh and groin region could be sufficient to prove sexual purpose. [ 54 ] In this Court’s opinion, the extension of the touchings by the offenders – in the cases referenced by the Crown – to other parts of their victims’ bodies does not diminish the sexual nature of the touching of the Complainant’s upper thigh as was carried out by the Accused in the present proceedings. [ 55 ] In other words, the single violation of the victim’s bodily integrity – in this case, the touching and repeated rubbing motions of the Complainant’s upper thigh area, based on her evidence that the Accused “kept rubbing” [16] – is sufficient to constitute the commission of a sexual assault and/or sexual interference offence(s).

The situation in which it occurred [ 56 ] The Complainant testified that she and a few of her other friends, who are girls, would hang out in a park, and then they would go over to the steps near the Accused’s house because he had a bong.

The Defence suggested the Complainant and her friends were simply “using [the Accused] for weed.” [17] [ 57 ] Although the Defence Counsel submitted that the Accused in this case was not attempting to be surreptitious since the touching was done in an overt manner before the Complainant’s boyfriend, this Court also notes that the surrounding circumstances in the present case encompass the Complainant’s evidence that: (

a) while the Accused was touching her upper thigh, she tried to make eye contact with her boyfriend in order to goad her boyfriend to say something because she was uncomfortable with the touching by the Accused; and (

b) the boyfriend apologized for his inaction, which in the Complainant’s assessment emanated from the boyfriend’s fear of his uncle (i.e., the Accused). [ 58 ] Significantly, the Crown noted that although the Defence Counsel raised an issue about the Accused’s disability, there is no evidence with regard to this disability and its nature. [ 59 ] I agree. [ 60 ] Thus, in my opinion, the Accused’s brazen act of touching the Complainant’s upper thigh area in his nephew’s presence and plain view should not, and cannot, be detached or severed from the possibility that the Complainant’s boyfriend was fearful of his uncle. [ 61 ] In the context of a substance abuse-environment or circumstance that was described in the evidence in the present proceedings, it is neither unreasonable nor unsafe to infer, from an objective observer’s perception, that the Accused was either boldly indiscreet or reckless in his conduct when he started touching the Complainant’s upper thigh area on the date(

s) in question. The words and gestures accompanying the act [ 62 ] During her viva voce evidence, the Complainant confirmed that she did not want the Accused to touch her, nor did she give him permission to touch or rub her thigh (Trial Transcript, pages 23-24). [ 63 ] The Complainant’s viva voce evidence also demonstrates the following: Q: Okay. Thank you. And did [the Accused] say anything when he was touching you? A: Yes. Q: What -- what would he say? A: He would tell me that it's okay. Q: And what, if anything, else did he say? A: Sometimes -- one of the times he told me not to tell anybody. Q: Okay. And what, if anything, did you say when he was touching you?

A: I didn’t say anything.[18] [64] The Crown submits that the Accused knew that the way he was touching the Complainant was inappropriate based on hertestimony that during one incident the Accused asked her not to tell anybody that he was touching her in this way. [65] On this point, I do not agree with the Defence’s argument that the context of the Accused’s statement that the complainantshould “not […] tell anybody” is unclear. [66] Both the dates’ range – of the 1st day of August 2021 and the 4th day of November 2021 in the Indictment – as well as theexcerpts above,[19] cumulatively confirm that the Complainant was clear in her evidence that the statement by the Accused, requestingher “not to tell anybody” was made at the point the Accused was touching and rubbing the upper thigh area of the Complainant’s body.

Mens Rea [67] The mens rea for a sexual offence is the accused’s intention to touch, knowing of, or being reckless of or wilfully blind to, alack of consent, either by words or actions, from the person being touched. (R v Ewanchuk, (SCC), [1999] 1 SCR 330at para 23). Sexual assault is a crime of general intent.

Therefore, the Crown need only prove that the accused intended to touch theComplainant in order to satisfy the basic mens rea requirement. (ibid at para 41). [68] Sexual interference is a specific intent offence that requires proof that the touching was done for a "sexual purpose": R v KWB(1993), (MB CA), 81 CCC (3d) 389 at 392; R v Sears (1990), (MB CA), 58 CCC (3d) 62 atpara 64. [69] In R v Morrisey, 2011 ABCA 150 at para 21, the Court held that touching is done for a sexual purpose “if it is done for one’ssexual gratification or violate a person’s sexual integrity.” [70] As earlier indicated, the Accused in the present proceedings elected not to testify nor call any evidence. [71] In terms of jurisprudence, Sopinka J, for a majority of the Supreme Court of Canada in R v Noble, (SCC),[1997] 1 SCR 874 at para 89, stated that, “silence is not inculpatory evidence, but nor is it exculpatory evidence.” [72] In the context of recognizing the accused’s right to silence and choice not to testify, Justice Moldaver, of the Supreme Court,subsequently emphasized in R v Prokofiew, 2012 SCC 49 at para 21, that: “the Crown [carries] the burden of proof throughout theproceedings and that there was no obligation on the part of [the Accused] to present evidence or prove anything.” [73] In circumstances similar to the proceedings in this case, however, the Ontario Court of Appeal, in R v Ezechukwu, 2020ONCA 8 at para 29, clarifyingly observed as follows: We note that the appellant elected not to testify.

In considering the reasonableness of the verdict, we treat the appellant’s silence asindicating that he could not provide an innocent explanation for his conduct. His failure to provide an innocent explanation at trialundermines the alternative inferences he says were available on the evidence: R. v. Dell (2005), (ON CA), 194 C.C.C.(3d) 321 (Ont. C.A.), at para. 35; R. v. An, 2015 ONCA 799, at paras. 15-16; R. v.

Wu, 2017 ONCA 620, at para. 16. [Citing, inter alia, R v George-Nurse, 2018 ONCA 515, at paras 31-35, aff’d 2019 SCC 12]. [74] Also, in R v Anderson, 2020 ONCA 780 at para 29, the Ontario Court of Appeal confirmed that: The court is entitled to assess the reasonableness of the jury’s verdict having regard to the absence of any innocent explanation for theappellants’ actions. The absence of defence evidence is a factor in assessing the reasonableness of the jury’s verdict.

As Watt J.A. notesin [R v Pannu, 2015 ONCA 677 at para 175 (aka R v Bains)], the failure to testify on its own does not justify an inference of guilt,however, “[w]hat follows from a failure to testify … is the absence of an innocent explanation of inculpatory facts and thus a basis toconclude otherwise than guilt.” [Emphasis added] [75] Effectively, the uncontradicted evidence of the Complainant, which I have accepted, is that the Accused touched and rubbedthe upper thigh area of her body. [76] For analytical reasons, this Court takes judicial notice of the existence of the contemporary custom of cases where peopleexchange hugs and/or kisses on the cheeks with each other as a sign of platonic affection or salutation.

However, in the present case atbar, there is no evidence of a culturally accepted value or custom before this Court where the rubbing of a young victim’s upper thigh isacceptable as demonstrating innocent non-sexual affection or greetings. [77] Neither do I have any alternative evidence or justification that the touching of that part of the Complainant’s body by theAccused was accidental or innocent. [78] In this regard, I find that the jurisprudence is clear that the touching of upper thigh area of a complainant’s body, incircumstances like the case before me, is sufficient to constitute a violation of the victim’s bodily integrity both from an objective and asubjective perspective, absent the victim’s consent.

As the Crown and the Defence conceded, given the Complainant’s age when thealleged sexual offence was committed, that consent is unnecessary in this case.

Disposition [ 79 ] I find the Complainant’s testimony credible and reliable; and I accept her uncontradicted evidence regarding the actus reus of the offence for which the Accused is charged: Prokofiew at para 11 . [ 80 ] Given the absence of alternative explanation from the Accused as to why he placed his hand on the victim’s thigh and “kept rubbing there,” as well as the existing jurisprudence, which confirms that touching of the victim’s upper thigh area of her body constitutes touching for sexual purpose, I find that it is not speculative to conclude that the purpose in the case at bar was for a sexual purpose. [ 81 ] I am satisfied that the Crown has discharged her onus to prove the Accused’s guilt beyond a reasonable doubt. [ 82 ] Thus, based on the totality of the evidence that I have accepted, I find the Accused guilty as charged. [ 83 ] While I recognize that the offence of sexual interference is not less serious than the offence of sexual assault, [20] I will nonetheless stay the sexual assault conviction, pursuant to the Kienapple principle.

Heard on the 26 th day of October, 2023. Dated at the City of Edmonton, Alberta this 22 nd day of December, 2023. O.A. Shoyele A Justice of the Alberta Court of Justice Appearances: S. Kachroo for the Crown K. Rodgers for the Accused