R v PY, 2023 ABKB 136

Court of King’s Bench of Alberta Citation: R v PY, 2023 ABKB 136 Date: 20230308 Docket: 220726822Q1 Registry: Edmonton Between: His Majesty the King Crown - and - PY Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the accused, the victim, or a witness must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________

I. Introduction [1] Did the accused, 33 or 34 years old at the time (June 2022), and now 35, sexually interfere with, invite sexual touching fromor sexually assault his first cousin once removed, 15 years old at the time and now 16? (He faces charges under ss. 151, 152 and 271 ofthe Criminal Code.) [2] The answer is yes on all three charges, as explained below. II.

Background [3] The complainant, TYD, stayed at the apartment of the accused (PY) in Edmonton, on and off, for two weeks in June 2022. (She was away from the apartment for most or all of the day for about half that period, however usually overnighting at the apartment.) Before that she had been staying in a substance-abuse treatment facility, from which she went AWOL. [4] Per the complainant, late in the night on her first night at PY’s place (around June 12, 2022), she performed fellatio on PY,followed shortly after by penile-vaginal intercourse with him.

Per her, two or three days later, they had anal intercourse. And, per her,they had sex “at least every day” she was based at the apartment. [5] Per PY, none of the alleged sexual contact occurred. [6] At the trial (held February 16 and 17, 2023), the Crown witnesses were the complainant and a police officer dispatched tocheck into TYD’s whereabouts and condition and to arrange her return to the treatment facility, which he and a fellow officer did on June27, 2022, ending TYD’s stay with PY.

TYD’s direct evidence largely came in the form of a videotaped police interview conducted July13, 2022. [7] The defence witnesses were PY and his sister (CY), who was called to give evidence primarily relating to PY’s cell phone(with that aspect becoming largely moot with the Crown requesting (and obtaining) a directed verdict of not guilty on a particularcharge). III. Legal principles [8] I adopt Mandziuk J.’s helpful overview of the criminal burden and standard of proof, credibility assessments, myths andstereotypes, and child witnesses in R v SGH, 2023 ABKB 39: A.

Burden and Standard of Proof SGH is presumed to be innocent. The presumption of innocence is connected to the requirement for proof of guilt beyond a reasonabledoubt, a fundamental principle of our criminal justice system. The Crown has the burden of proving each element of an offense. That burden of proof rests on the Crown throughout the trial. Thebenefit of any doubt must be extended to the accused R v Lifchus, [1997] 2 SCR 320 (Lifchus) at para 36. Proof beyond a reasonable doubt is not proof to an absolute certainty, but it is proof to a high level of certainty.

It is beyond proof ofprobable or likely guilt: R v Starr, 2000 SCC 40 at para 242; Lifchus at para 32. Reasonable doubt can arise from the evidence or from the absence of evidence. It is grounded in reason and common sense, anddetermined without any basis in sympathy, prejudice, emotion, sentiment, leaps of logic, flights of imagination, or frivolousconsiderations: Lifchus at para 36. SGH gave evidence at trial.

Therefore, I must consider the Supreme Court of Canada’s direction in R v W(D), (SCC),[1991] 1 SCR 742 (W(D)) as interpreted by the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (Ryon) and R v Achuil, 2019 ABCA299, leave to appeal dismissed (SCC). These principles were helpfully summarized by Renke J in R v Hermkens, 2021 ABQB 1016 at para 12, as follows: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown …. (ii) In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit .... (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence), they may not simply assume theCrown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that

evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or ... otherexculpatory evidence) cannot be taken as proof of the accused’s guilt. Additionally, the Court in Ryon at para 47 held that whether evidence exculpating an accused raises a reasonable doubt must be assessedin the context of the evidence as a whole. I will now turn to discuss the general principles of credibility assessment, myths and stereotypes and the particular considerations arisingfrom the evidence of children.

Credibility Assessment Generally Witness credibility and reliability are the over-arching issues and challenges in this case. Credibility assessment is about witness’honesty and truthfulness. Reliability is about the accuracy of the witness’ evidence. A number of factors require careful consideration when assessing the credibility of a witness. The uniqueness of each witness and thefacts of each case must be weighed and evaluated carefully.

As Cory J observed in R v S (RD), (SCC), [1997] 3 SCR 484 (S (RD)) at para 128: It is, of course, true that the assessment of the credibility of a witness is more of an “art than a science.” The task of assessing credibilitycan be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. In making credibility findings, the evidence must be considered in its entirety. Each part of the evidence is part of the whole, and thoseparts interact and inter-relate.

Individual pieces of evidence cannot be viewed in isolation: White v The King, (SCC),[1947] SCR 268 at 271; Ewanchuk at paras 29 – 30. The factors that can be considered in assessing credibility include the witness’s character, emotions and feelings, self-interest, hostility,attitude towards the accused, motive to lie, character for truthfulness and prior deceptive behavior. Additionally, evidence of bias ordishonesty and material facts that are proven through the testimony of other witnesses can weigh into the analysis: R v Tash, 2013 ONCA380 at paras 40 – 43.

Inconsistencies in the particulars and the whole of the evidence are certainly an important consideration. No singlefactor or group of factors is necessarily determinative, and any list of factors cannot be viewed as exhaustive. Additionally, the trier of fact’s life experience and common sense can weigh into the process, which necessarily involves the trier offact’s view of the evidence in all its diversity as it emerges during the trial, in tandem with their experience, logic, and intuition: R vMarquard, (SCC), [1993] 4 SCR 223 at para 49; S(RD) at para 129.

Myths & Stereotypes Assessing credibility and reasonable doubt cannot rely on myths and stereotypes, including generalizations about how human beingsbehave in certain situations. This is impermissible. Such reasoning can undermine the fairness of the trial and distort the truth-findingprocess that is at the heart of the trial: R v ARD, 2017 ABCA 237 at paras 6 – 9 (ARD), aff’d sub nom R v AJRD, 2018 SCC 6. In short,myths, stereotypes, preconceptions and related irrelevant considerations must be strenuously avoided. Generalizations or other mattersthat are not in evidence play no

part in the credibility assessment process: S(RD) at paras 129 – 130. In R v JC, 2021 ONCA 131 (JC), the Ontario Court of Appeal explained that stereotypical thinking is not to be conflated with theapplication of logic or common sense. First, judges must avoid speculative reasoning that invokes common-sense assumptions or humanexperience that are not grounded in the evidence or appropriately supported by judicial notice (JC at para 58).

Second, factual findings,including determinations of credibility, cannot be based on stereotypical inferences about human behaviour; it is an error of law to drawinferences about how a complainant or accused is expected to act based on stereotypical inferences (JC at para 63). Particular Considerations Arising From Child Witnesses In R v W (R), (SCC), [1992] 2 SCR 122 at 132 -133 (W(R)), the Supreme Court of Canada stated the following regardingthe evidence of children: The law affecting the evidence of children has undergone two major changes in recent years.

The first is removal of the notion, found atcommon law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with specialcaution…So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particular case, itwill have fallen into an error. The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children.

One finds emerging a new sensitivity to the peculiar perspectives of children.Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection. Wilson J. recognized this in R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30, atpp. 54-55, when, in referring to submissions regarding the court of appeal judge’s treatment of the evidence of the complainant, she saidthat ... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with thetestimony of young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that thecourts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proofmust be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as acontradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concernis well founded and his comments entirely appropriate.

While children may not be able to recount precise details and communicate thewhen and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In

recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking andcorroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, ofcourse, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of youngchildren. [emphasis added] When dealing with the evidence of children, courts should not treat flaws and contradictions in a child’s testimony as having the sameeffect as they do in an adult’s testimony.

Children perceive - and therefore describe - events differently from adults. Courts must assessthe flaws and inconsistencies in children’s evidence with this in mind. The Supreme Court of Canada further expanded on the treatment of evidence of children in R v F (CC), (SCC), [1997]3 SCR 1183 (FCC), specifically the effect of subsequent contradictory evidence of a complainant after adoption of the initial videointerview. At trial, the complainant, who was six during the offence and the video interview, adopted her video interview during herexamination-in-chief.

On a cross-examination, the complainant made statements which contradicted the video interview. For example,she testified differently about clothing of the offender and whether he was awake at the time of the offence. It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more thanadults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The youngerthe child, the more pronounced will this be...

It is a common experience that anyone, and particularly children, will have a betterrecollection of events closer to their occurrence than he or she will later on. (See, e.g., Rhona Flin and J. R. Spencer,“Do Children ForgetFaster?”, [1991] Crim. L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the allegedoffence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony givenlater at trial. (FCC at para 19).

The Supreme Court of Canada warned courts at para 48: A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistenciesin her testimony. Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to theweight which should be attached to the videotape...

The Court further held at para 49 that the trial judge’s analysis of inconsistencies was reasonable: [The trial judge] applied the principles from B. (G.), supra, and W. (R.), supra, in holding that the minor inconsistencies regardingperipheral details were not of “great significance” and that they should not preclude her from relying on the videotaped statement as true.Furthermore, she found that the complainant’s evidence-in-chief and cross-examination were consistent with the evidence she gavein her videotaped statement with respect to the essential elements of the assault. [paras 35-55] [emphasis added] IV.

Analysis [9] Did the Crown prove the alleged offences beyond a reasonable doubt? [10] I start by examining TYD’s credibility and reliability. A. Credibility and reliability of TYD - factors [11] TYD’s evidence came in two forms: first, via s. 715.1 of the Criminal Code, a video recording of her interview by police onJuly 13, 2022 and, second, her direct and cross-examined evidence at trial (February 16 and 17, 2023). [12] In the video, TYD presented as calm, lucid and matter-of-fact. 1.

Vivid, physically realistic, and plausible details [13] In the video, she provided vivid and logical details of the asserted sexual contacts. [14] In describing the fellatio, she stated (in part) [note: the following and other reports of the police interview are from a transcriptprepared for the defence and shared at the trial, with trial testimony reports drawn from my notes]: Q: ... So what was he doing with his body while you were giving him [fellatio]? He was just kind of enjoying it, I guess. And sometimes he’d grab on my hand and just shove his [penis] all the way back. Ugh, ithurt.

Q: I just want to make sure I heard what you said. He grabbed you? He grabbed my, not grabbed it, but he used one hand to push my mouth all the way. Q: okay. I couldn’t breathe. [15] Concerning the asserted penile-vaginal intercourse, TYD’s interview statement included these details: Q: ... and when did that [penile-vaginal intercourse] happen?

Right then and there [after the fellatio]. Q: okay.] Let’s just say I was also on my period . Q: okay. I wasn’t on my period but I was like ... you know how when you start birth control it messes up your cycle. And I was bleeding for 20 days after that. Not even 20 days. ... Q: okay. So sorry, who took what clothes off? My uncle [i.e. PY, who she called “uncle” at points] took my shorts off. And then I told him, “I’m on my period.” He’s like, “I don’t care.” I’m like “okay.” [ 16 ] Concerning the asserted anal intercourse, her interview statement included the following: Q: Okay.

And I know you mentioned that there was one time about a couple of days after [the above-described contacts] that he took your anal virginity. So tell me what happened. That’s so gross. Okay. We already had sex right then, but then he said he wanted to fuck my ass. And I’m like, “okay.” And I told him, I’m like “Can you go slow because this is my first time?” He’s like, “okay.” But did he really go slow? No, he didn’t . But he put on a condom and then I was kind of bent over the bed, I guess. And then he just pushed it right it, pushed his dick right in. And it hurt and I was actually crying at this point.

I was in pain. And I was like, “That hurts.” I’m like, “stop.” And then he was waiting for me to stop crying. I was still crying because it hurt really bad . And after he kind of put it back in slowly. And then once he had his dick all the way inside my ass, that hurt. [later in the interview, describing the same incident] He didn’t go slow. ... He just stuck it right in. Oh, fuck, that hurt . ... He stopped ... after I was waiting for the pain to go away, but it didn’t really go away. And then I was like, “okay, it doesn’t hurt as much anymore.” I was still sobbing at that point because of the pain .

And then he just put his dick back in. ... [still later] Once he finished, he just took it out. He was like, “okay, you can get up now. I’m finished.” And I got up, but it hurt like a bitch . ... And after I went to the bathroom and cleaned myself up and stuff, I came out just like, yeah, I couldn’t even sit on anything for a while, because my ass hurt that much . ... And I was laying on the couch [on] my stomach .... 2.

Plausible accounts of desire to conceal [ 17 ] It was common ground that PY and TYD were aware of their family connection and that PY knew TYD’s age (15) during the two weeks in question. [ 18 ] TYD’s interview statement included descriptions of PY’s and her own “concealment feelings” i.e. his and her (at least initially) concerns that no one, especially M (TYD’s mother and PY’s first cousin), find out about the asserted sexual contact. [ 19 ] Per TYD’s account, PY was very concerned that she not disclose their sexual contacts to M. [ 20 ] At the very outset, PY was apparently not so concerned.

TYD described a first-night-at-apartment discussion with him, following them looking, on her cellphone, at a video clip of a sexual act on a social media platform, with him saying “Oh, I’d do that do you” and shortly after “I would’ve done that to you”, TYD replying “Okay, I wouldn’t tell [my] Mom anything and you know that, right?” and then asking “What if Mom catches us?”, and him replying “Doesn’t matter.” [ 21 ] However, per her, shortly afterwards, and before the oral sex, he asked her “You’re not going to tell your mom, right?” , with her replying “no” and, him again asking “you promise?” , and her replying “yeah, I promise I won’t tell her anything.” [ 22 ] Between the fellatio and the penile-vaginal intercourse following shortly afterwards, per her, PY said (in sequence): “don’t tell your mom ... please just don’t tell your mom ... you’re going to be my favourite ... niece ... just don’t tell your mom.” Per her: “He kept saying [that] over and over.” [ 23 ] TYD’s evidence included references to her own worries in this regard e.g. “Because right after we had that first night [of fellatio and penile-vaginal intercourse], we’ve been having sex at least every day [of her time at PY’s apartment].

But it was hard not to tell my mom. I want to tell her. And I was like, “I shouldn’t because then could probably get mad at me. ” 3. TYD’s participation in the asserted acts [ 24 ] I recognize that TYD was not old enough to legally consent to the asserted sexual contacts with PY.

I also recognize that de facto consent is not consent in this context and that such consent may not reflect actual consent: R v Friesen , 2020 SCC 9 (paras 148- 154 ) and R v Hajar , 2016 ABCA 222 (paras 82-103 ). [ 25 ] What I mean here is that TYD did not deflect from offering details reflecting her role in the asserted encounters and, particularly, her ostensible consent. For example (again, from the police interview): • as noted above, on the first evening at the apartment, in response to PY saying (effectively) I could do that [i.e. the same sexual

act seen by them in a video on her phone] to you”, she said that her reaction was “okay, I wouldn’t tell [my] Mom anything and you know that, right?” ; • in the same dialogue, after PY began kissing her, she told him “Wait, this doesn’t feel right.” In response to his reply (“It doesn’t matter. You’re the one who said that we can do this”), she said “ Well, I know I agreed, but I’m okay with it though . ...”; • as noted earlier, shortly before the fellatio, per her she told PY: “...

I promise I won’t tell [my mom] anything ”; and • as also noted earlier, per her she said “okay” in response to PY’s request for anal intercourse and, at one point during that intercourse, after PY had withdrawn, she told him “ okay , it doesn’t hurt as much anymore” i.e. “you can continue.” 4. Account included unusual, unlikely-to-be-concocted details [ 26 ] Per TYD, after the described-by-her anal intercourse (see above synopsis of her evidence), the following dialogue ensued: PY: You know what? I got something to say.” TYD: What is it? What? PY: When you were crying and crying, it was a big turn on for me.

TYD: Oh, it was? PY: Yeah. TYD: Okay. [ 27 ] As well, per TYD, shortly afterwards, they had this exchange: PY: Your sex is too good that I want kids ... you don’t mind having my kids, do you? TYD [who reported here that she did not know what else to say] I don’t mind having your kids. 5. Not every opportunity taken to allege wrong-doing [ 28 ] In the police interview, TYD was asked whether her participation in sexual contacts with PY was offered or obtained in exchange for drugs provided or shared by PY. [ 29 ] She adamantly resisted that idea: Don’t say that. I was not exchanging anything for it.

He was just spoiling me after that. ... I don’t like it when people assume I was exploiting myself. ... There was no exchange. ... I’m sorry, but I hate it when people assume that. ... I’m sorry. That’s just something I can’t put up with, when they think that I’m exploiting or trying to exchange something for it. It wasn’t my fault. [The police interviewer explained that she was not assuming this and that she was not blaming TYD for anything that happened.] 6. Care taken in providing evidence [ 30 ] TYD largely appeared to be taking care with her testimony.

For instance, when the police interviewer prefaced a question with “so when the police picked up you [from the apartment]”, TYD said “No, Well, I didn’t get picked up”, then explained the circumstances of the police coming to meet with her and then inspecting the apartment.

Shortly after in the interview, and referred by the interviewer to her statement that she’d known PY since the middle of June, TYD add “And I think [I’d] known him for a little bit too before [June 11], because we [had] talked on FaceTime.” At another point, where the interviewer said “I thought you were high on weed and pint” at a certain stage, she clarified: “No, I was high on weed.” [ 31 ] She did not have an “answer for everything.” Asked by the interviewer at one point to “tell me everything [PY said]” at one stage of TYD’s first night at the apartment, she replied: “I can’t remember.

I don’t got super mind to remember everything.” 7. Willingness to offer positive comments about accused [ 32 ] In the interview, TYD described feeling poorly (“massive headache”) at one point on her first evening at the apartment. Referring to PY, she said “... he gave me water and he made sure I was okay and fine.” 8. Reticence on two peripheral aspects [ 33 ] The defence emphasized two particular exchanges with TYD in cross. One concerned the level of her marijuana consumption in the year or so leading up to the time at PY’s apartment.

The other was about her understanding of the term “trap house”, which she had used in her police interview (referring to an occasion when she and her mother visited such a place). [ 34 ] On the former, TYD said in her interview the following: Q: What kinds of things do you like to do? Legally, or not?

Q: This is a safe space, you can tell me anything you want. When I’m not here [at the facility at which the interview was conducted], I mostly just smoke weed. [ 35 ] At trial, here is the cross exchange between defence and TYD: Q: From the age of 14, how often did you drink alcohol? Barely. Q: How often did you smoke weed? Once in a while. Q: You would not view yourself as a regular user of those substances? Correct. .. Q: I am suggesting that [you were staying at a treatment centre] because you were using marijuana and alcohol regularly between the age of 14 and when you were at [PY’s] place.

No. [defence reference to “mostly smoking weed” response in the police interview] Q: Which is it: only an occasional user [in that period] or what you said in the interview (“mostly just smoke weed”)? I did not drink or anything as much,. Q: [Let me be] clear with you: the question was how often did you smoke weed [in that period] and you said “once in a while.” That is now. Q: But months ago, you used to smoke all the time. The question was pretty clear: “between 14 and 15, were you using weed regularly?” Agree?

Often. [ 36 ] And later: Q: Back to the question of marijuana use between ages 14 and 15 [and your “sporadic” and “regularly” answers). I am wondering which answer we should accept from you on this. [Can you re-ask the question?] Q: I am suggesting you gave two answers on marijuana use between age 14 and when you ended up at [PY’s] house. At first [at trial], you said “only once in a while” and [after I pointed out your interview answer], you said you used it regularly. Which version is the accurate and truthful one? What ... [I was] trying to understand. Q: if you do not understand, do not answer [the question].

Ask me to repeat it. I will say I thought this was a pretty clear question, with two different answers. Agree with me? It’s a pretty straightforward question about how much marijuana you consumed and you say now you’re confused about it? Is that a truthful answer? Is it a truthful answer you were confused? Yes. Q: okay. [Let’s not] have that happen again. If you’re confused, you will tell me. Yes. [ 37 ] On the trap-house aspect, in her interview, TYD said that, at one point during her time at PY’s apartment, she and her mom’s friend (

F) went to a house TYD described as such (“Let’s say it’s like a trap house”). [ 38 ] At trial, TYD initially and for a long spell balked at answering that question: Q: now, what is a trap house? [after a long pause] no. Q: what do you mean by “no”? I am not going to answer for it.

Q: Take you time. What is a trap house? You used that term in your interview. A house, just. Q: How different from other houses? People come and go ... all I am saying. Q: And do what? I do not know ... not my business. Q: Being at this trap house ... what were people coming and going and doing [there]? I do not know ... [I was] not allowed in the room. Q: what does the term “trap house” mean to you? [long pause with no answer] What does that term mean to you? Do you understand the question? Yes, I did.

Q: what does the term mean to you? [long pause with no answer] I am prepared to wait for the answer. [another long pause] No answer for me? Okay, what is your understanding of the term “trap house”? I prefer not to say. [At this point, I directed TYD to answer the question to the best of her ability] A trap house is where people come and sell drugs or come and buy drugs. Q: I want to talk about why you were reluctant to give that answer. It took a long time to get that answer. It’s pretty simple here. I was trying to find the right words.

Q: I am suggesting to you [that] you were trying to avoid giving the answer. No. Q: in fact, what you said was that you “prefer not to answer.” I am suggesting that that statement was a lie. Agree with me? No. Q: You were lying [just there] when you said [that]. You are trying to avoid giving an answer you know will ... not reflect well on you. Agree? No. Q: You knew perfectly well ... Yes. [I was] trying to find the words to describe it. Q: It’s pretty straightforward: it’s where drugs are bought and sold and consumed. Agreed. I did not consume any.

Q: It’s generally where drugs are bought and sold and often consumed. Correct? Yes. Q: it’s not complicated to tell us, is it? No. Q: you chose not to tell us until the judge ordered you to tell us. No. Like I said, I was thinking. Q: no, your answer was that you “prefer not to say.” That’s what you told us. You know the answer. That’s another lie you told us here. No,. Q: you know what it was and you chose not to tell us. No. [ 39 ] And later:

Q: [after defence put it to TYD that she received drugs at the trap house from her mother or other people there, which she denied] I am suggesting that is why we had this game played about whether you knew what a trap house was. You did not want to give an honest answer for this period of time. No, I was going to tell [you].

I was just trying to think. [ 40 ] I agree with defence that the trap-house question was straightforward and that, as reflected in the above exchanges, TYD plainly decided, at the outset and through most of these questions, that she would not answer or answer directly. [ 41 ] On the marijuana-use aspect, I take a slightly different view, with it being possible TYD was, at least initially, under the impression the question was about her current or at least more recent use, versus her pattern of use in the year or so leading up to her stay at PY’s apartment. [ 42 ] In any case, while at least the trap-house discussion raises concerns about TYD’s willingness to provide accurate and responsive answers about one of her activities during the period in question, I do not find that that dialogue, or both sets of dialogue (trap-house and marijuana use) eclipse or cast a material shadow on her evidence of the asserted sexual contacts with PY: • both aspects concern events separate from the asserted at-apartment sexual contacts (marijuana use in the year or so leading up to the key period; trap-house visit away from the apartment); • in the end, TYD answered both questions (acknowledging “regular” marijuana use in the lead-up year or so and describing what a trap house is) i.e. she did not fail to reconcile the initial discrepancy on marijuana use or to (eventually) answer the trap-house question; • nothing equivalent or even akin to the (eventually acknowledged) marijuana-use inconsistency surfaced concerning TYD’s accounts of the asserted sexual contacts; • similarly, there was no dimension of those asserted contacts about which she displayed any reticence; • she did not deny that a trap-house visit had taken place (which may have been difficult, given her interview reference to such a visit); • it is not surprising that a child witness would be reticent about acknowledging (or re-acknowledging, as here) an activity (such as heavy marijuana use or a trap-house visit) that would or might reflect poorly on her- or himself; and • her initial disclosure of a trap-house visit (i.e. in the police interview) was offered in an unguarded, matter-of-fact way i.e. it was only at the trial when she showed reticence on that subject. [ 43 ] Overall, TYD’s reticence and initial attempts to deflect on the trap-house aspect, even combined with something akin about her marijuana use, do not cause me to view all of her evidence (interview and at trial) as suspect.

Fundamentally, her reticence on one or both of these peripheral aspects at trial does not cause me to view her per-interview evidence, offered with no hint of reticence or confusion, as less credible, particularly concerning her accounts of the asserted sexual contacts with PY. 9.

Drug consumption not affecting core reliability [ 44 ] TYD acknowledged consuming marijuana and “pint” [a.k.a. methamphetamine], the latter for the first time with PY on her first night at the apartment. [ 45 ] In cross, she acknowledged heavy drug use over the two weeks in question, that some of her memories of those two weeks were a “blank”, and that overall those weeks were chaotic and tumultuous.

She also acknowledged in cross that, for some of the things discussed in her police interview, she could not “find the memory in [her] head.” [ 46 ] However, asked if the latter phenomenon may have extended to her interview descriptions of the asserted sexual activities with PY, she said “no, I remember what he did, because those [were] the most traumatizing things.” [ 47 ] No evidence showed or suggested that TYD’s memory of the core (asserted sexual activities) events was compromised by her drug use during that time period or the passage of time between the asserted events (in mid- to late June 2022) and, first, the police interview (July 13, 2022) and, second, the trial (February 16 and 17, 2023).

B. Credibility and reliability of PY -- factors [ 48 ] PY gave his evidence in largely straightforward, matter-of-fact fashion. [ 49 ] He gave moving testimony of extremely adverse circumstances growing up, including having lived in 50 different foster homes. [ 50 ] He readily acknowledged his criminal record and a subset of the offences on it that were brought to his attention. [ 51 ] Similarly, he openly acknowledged his long-standing substance-abuse problems. [ 52 ] He seemed to be doing his best to provide a comprehensive list of people who visited the apartment during the two weeks in question.

He readily acknowledged the frequent and open illegal-drug use by many of those people while at the apartment. [ 53 ] He acknowledged responding to TYD’s requests for drugs by giving her some and to consuming drugs with her.

[ 54 ] He was willing to acknowledge things that he might have done better e.g. after describing someone breaking the door to his suite, PY said that he “did not bother calling the cops ... I should have.” [ 55 ] While it was clear that he had a difficult relationship at times with M, he acknowledged times she would help him e.g. “she would bring [us] supper.” [ 56 ] He acknowledged that there were times when he and TYD were alone in the apartment (“like, a few times”).

Same for knowing that TYD was “around 14 or 15” when she was at the apartment i.e. was under 16. [ 57 ] He was open to clarifying things when an obvious misunderstanding emerged e.g. after he had described his apartment as a “bachelor suite” and was reminded that such suites do not typically include a separate bedroom. [ 58 ] He denied the alleged or any sexual contact with TYD. [ 59 ] While the evidence showed that PY consumed illegal drugs (marijuana and “pint”) throughout the two-week period in question, it did not show that his memory of that period was materially affected. C.

TYD’s account not implausible because of “comings and goings” [ 60 ] Defence characterized TYD’s overall accounts of sexual contacts with PY as implausible, focusing largely on all the “comings and goings” of various people, day and night, at PY’s apartment i.e. it would have been too risky for PY to engage in sexual acts with TYD, since they would very likely have been discovered by one or more such visitors. [ 61 ] Here defence emphasized the evidence showing that PY’s apartment building was accessible not only via the front door (initially with a working buzzer and, in any case, often left propped open by one or more tenants or visitors) but also by an always-or- often open or accessible back door. [ 62 ] Plus PY’s uncontradicted evidence that his apartment suite door lock did not work, that people would come and go both to and from the apartment and to and from his bedroom inside it, where visitors often consumed drugs, and that the bedroom door had no lock. [ 63 ] And that various people (at least 7 or 8 of them identified, if not by name, at least by their connection to PY and/or TYD or other visitors to the apartment) indeed were in and out of the apartment at various times during the two-week period in question.

Including night-time visitors. [ 64 ] And (as far as I can tell) at least two visitors overnighted at least one night i.e. TYD’s final night at the apartment, being on hand in the apartment living room around 8 a.m. when the police contacted TYD to check on her well-being and still there when the police visited the suite. [ 65 ] I disagree that the “discovery risk” was such that TYD’s account of the sexual contacts is implausible or even less plausible (all other things being equal): 1.

TYD’s evidence of the fellatio and penile-vaginal intercourse was that all other visitors to the apartment (i.e. who had been there earlier that day or evening) had left by the time of those asserted encounters (i.e. with only PY and TYD still there) and that the encounters occurred very late (“1 or 2 in the morning”); 2. the evidence did not show that, even with all the “comings and goings”, visitors would simply walk into the apartment suite unannounced or, once inside, into PY’s bedroom.

Instead, per PY (asked how often people would buzz up to get into the apartment building): “I cannot recall ... people would knock on the door ”, which I understand to mean the apartment-suite door i.e. not the apartment-building front door. Even M apparently knocked before entering or otherwise signalled her intention or wish to enter. Per PY: “[M] would ... come back with supper ... she would bring supper ... [Q: how did she get in?] I would open the door for her .” 3.

PY was not asked whether any visitors would simply walk in i.e. without knocking or otherwise signalling their intention or wish to enter, and, as noted, he did not give any evidence of any such visitors or even address the risk of no-knocking visitors; 4.

PY acknowledged there were times when he and TYD were alone in the apartment (“not numerous times ... a few times”); 5. asked “if the two of you were alone together, what might the risk be of someone showing up unannounced if [for sake of discussion] you were doing something improper with TYD”, he said “most definitely ... the risk was high.” But he did not explain why that would be so in the face of the “knocking first” evidence from both himself and TYD (see below) and the absence of any evidence of any visitors who would enter the apartment suite without knocking .

In any case, even if the risk of visitors “showing up” at the apartment was high i.e. showing up at the door of the apartment unannounced, that does not automatically translate (in the face of the noted “knock first” evidence and absence of “would walk right in” evidence) to a risk of any such visitors actually entering the apartment unannounced; 6. in her police interview, TDY referred to one occasion where she and PY were “almost caught” together, by PY’s girlfriend: Q: I’m just wondering if anybody would’ve seen you guys cuddling in bed? No?

But someone kind of was knocking on the door and then we were almost caught, but we didn’t really get caught. Q: Okay. When would that have been? I don’t know.

Q: Okay. Do you know who was knocking on the door ? His girlfriend was knocking on the door , Q: Okay.

Very tellingly, even PY’s girlfriend knocked before entering the apartment , which (on this occasion) enabled PY and TYD to avoid discovery by her. 7. in her police interview, and referred to her statement that she and PY “pretty much had sex every day” after the asserted anal intercourse (which occurred, per TYD, on about her third or fourth day at the apartment), she replied “Yeah, [that] is correct, but we had to do it when no one was there .” Asked if it ever happened when anyone was there, she replied: “Unless they were sleeping, probably.” In other words, no evidence showed that PY ever courted any discovery risk by having sexual contact with TYD in front of others, limiting such contact (per TYD) to times when no one else was in the apartment or at least when no one else was awake.

No evidence showed that, at any such latter times, any such sleeping persons were sleeping in the bedroom or at least in whatever room PY and TYD were occupying at the time; and 8. in any case, and tellingly, no evidence showed that any third party witnessed PY and TYD having sexual contact or being in any kind of compromising position, from which sexual contact might be assumed or suspected. In other words, whatever “discovery risk” existed, it apparently never eventuated or materialized.

Here I recall the evidence showing that, on TYD’s last morning at the apartment (when, per her, she was awakened, from “cuddling” with PY, by a phone call from the police checking on her welfare), two other persons were in the apartment. The evidence did not show that either of those persons was M or PY’s girlfriend. (Per TYD, PY was very concerned about their sexual contact being discovered by M.

Also per TYD, PY’s girlfriend was the person who “almost caught” them.) No evidence showed that either of the two present-in- the-apartment-that morning people had any particular connection to either M or PY’s girlfriend i.e. that there was a risk of any “discovery” by either or both of those visitors getting back to either M or PY’s girlfriend or both. In any case, while PY referred to a “risk” that those persons would or may have noticed “cuddling” activity in PY’s bedroom, he did not say that (as he understood it) they actually noticed any such (or other “compromising”) activity.

Neither visitor was called as a witness at the trial. D.

Non-impact of absence of M [ 66 ] Defence argued that the Crown should have called M, TYD’s mother and PY’s first cousin, as a witness and that M’s absence was telling against the Crown’s case. (Defence did not request that an adverse inference be drawn.) [ 67 ] Here defence referred to TYD’s evidence that, once she was back at the group home (i.e. after the two-week period in question), M told her that she (TYD) and PY were “too close” and that (effectively) TYD should remember that “they are family”, sparking a “that’s-gross-and-nothing-happened” response from TYD. [ 68 ] Per defence, M should have been called to give evidence about what she observed between PY and TYD that raised her suspicion or at least concern. [ 69 ] Per the Crown, M’s absence was immaterial.

Per the Crown, no evidence showed that M directly or even indirectly observed any sexual contact between PY and TYD or otherwise had material evidence to provide concerning the alleged offences. [ 70 ] I note that TYD’s account of her mother’s comments did not include any back-and-forth the two of them (M and TYD) may have had about the reason(

s) for M’s concerns and TYD’s (possible) explanations, rationalizations or further denials re those concerns. [ 71 ] I infer from the evidence of M being in and out of the apartment at various points during the period in question and apparently never being there when any alleged PY-TYD sexual contact occurred, plus the evidence showing that M and TYD were often apart during that spell, that whatever M observed (if anything) was limited to ambiguous signals i.e. her concerns did not stem from direct or even indirect observation of any improper contact between PY and TYD.

Accordingly, I do not see M as a material witness or, in turn, her absence as casting a shadow on the Crown’s case. [ 72 ] I will add that nothing in this decision turns on or is materially boosted by TYD’s account of M expressing “too close” concerns to TYD. [ 73 ] If defence believed that it would have been useful to call M to probe her “too close” comment (e.g. to cross-examine her with a view to showing that her perceptions were mistaken, off-target or otherwise unfounded), it could have done so: see R v Lawrence , 2020 ABQB 61 at para 46 (19), including footnotes 15 and 16, which link to R v Jolivet , 2000 SCC 9 and R v Luth , 2009 ABQB 517 (Manderscheid J.) at paras 56-57 . [ R v Lawrence affirmed in 2020 ABCA 268 .] V.

Conclusion [ 74 ] I find that the Crown proved each of the three alleged offences (sexual interference, invitation to touching, and sexual assault) beyond a reasonable doubt. [ 75 ] In reaching that conclusion I rejected PY’s denials of the alleged offences. [ 76 ] I also considered whether, even though rejected, PY’s denials or his evidence overall raised a reasonable doubt on any of the elements of any of the charged offences, concluding that they did not.

[77] I also considered whether, looking at the entire evidence as well as the absence of evidence (e.g. from M), any reasonabledoubt arises on any of the elements of the charged offences, again concluding that they did not. [78] The overarching reason for those conclusions is my acceptance of TYD’s account of the alleged offences, which I found to becredible and reliable and reasonable-doubt-eliminating. [79] In other words, I am following the path outlined in R v Kromah, 2019 ABCA 25 ...

Since the appellant’s evidence was a bare denial, there was little else the trial judge could say as to why the appellant’s version wasultimately rejected, other than to explain why he accepted the complainant’s testimony: R v REM, 2008 SCC 51 at para 66, [2008] 3SCR 3; R v Vuradin, 2013 SCC 38 at paras 13, 19, [2013] 2 SCR 639; R v Gordon, 2015 ABCA 341 at para 5, [2015] AJ No 1207; R vHilton, 2016 ABCA 397 at para 63, 343 CCC (3d) 304. [para 6] [emphasis added] [80] See also R v Garford, 2021 ABCA 338: ... it does not automatically follow that an accused providing a bare denial of culpability is entitled to an acquittal unless the trial judgecan identify and articulate reasons why the denial is rejected.

An accused’s denial is ultimately assessed in the context of the whole ofthe evidence. It would be a perverse misinterpretation of W(

D) to suggest that the mere fact of the accused taking the stand, or otherwiseleading defence evidence, is in itself sufficient to raise a reasonable doubt. As neatly stated by this Court in CLS at para 46: Thus, a trial judge is not obliged to find any particular fault with an accused’s testimony in order to convict.

A trial judge mayreject a defendant’s evidence, and find that it does not give rise to a reasonable doubt, based on a reasoned acceptance beyond areasonable doubt of conflicting credible evidence proving the essential elements of the offence: R v JJRD, (2006) 218 OAC 37 atpara 53, (ONCA); R v Gordon, 2015 ABCA 341 at para 22. No error has been demonstrated. The trial judge disbelieved Mr Garford’s evidence, to the extent it conflicted with that of thecomplainant.

He accepted evidence which established that the sexual assaults had occurred. [paras 32 and 33] [emphasis added] [81] I acknowledge the very capable conduct of this case by both Crown and defence Heard in Edmonton, Alberta on February 16 and 17, 2023. Delivered orally at Edmonton, Alberta on March 8, 2023. Dated at Edmonton, Alberta on March 8, 2023. M. J. Lema J.C.K.B.A. Appearances: Dawn MacDonald Deputy Chief Prosecutor for the Crown Kent J. Teskey K.C. Pringle Chivers Sparks Teskey for the Accused