R v KP, 2024 ABCJ 33

In the Alberta Court of Justice Citation: R v KP, 2024 ABCJ 33 Date: 20240208 Docket: 220982219P1 Registry: Calgary Between: His Majesty the King - and - KWP Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify SW must not be published, broadcast, or transmitted in any way.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. Corrected judgment: A corrigendum was issued on February 12, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. Decision of the Honourable Justice S.E. Pepper INTRODUCTION [ 1 ] The accused, KP, is charged with one count of assault by choking contrary to s 267(

c) of the Criminal Code from February 2022 and one count of sexual assault contrary to s 271 of the Criminal Code from June 30, 2022. The complainant is his now former wife, SW. This is the decision.

[ 2 ] KP and the complainant were married to each other. The complainant says that these offences occurred when she tried to leave KP and he became angry. KP testified and completely denies the allegations. [ 3 ] This case will be determined through an analysis of the credibility and reliability of the witnesses. The credibility assessment will proceed through the WD analysis and other cases bearing on the burden of proof and the concept of reasonable doubt. EVIDENCE The Complainant [ 4 ] The complainant and KP married in 2012 but they were together for several years before that time.

They have a 10-year-old son (V). In February of 2022, they were living in Airdre. Their property had a main house and a separate coach house or studio in the back. SW operated her beauty salon out of this coach house at the time. February Assault [ 5 ] In February of 2022, SW decided that she did not want to be in her marriage anymore. She explains “I just – I finally decided to say, like, I can’t do this anymore. And I just said I – I don’t want to be part of this anymore and this isn’t good anymore.” [1] [ 6 ] KP did not take the news well.

At page 6 of the October 27 th transcript, SW explains what happened: And he got really upset, like, right away…. He was just -- like, he started calling me names, cursing at me. He pushed me. And then he said, well, if you don't want to be here, you can get the 'F' out. And he started going into the bedroom closet and grabbing clothes and throwing them across the room. And I was just kind of standing there. Usually when he lost his temper I would just kind of go quiet because if I said or anything or agitated the situation, it usually made it worse. So I was just kind of quiet watching him do that.

And then he was like, you can just go. And I was like, Okay, I'm going to go then. And then when I said that, when I said, yes, I'm going to go, that's when he got really angry with me, and he put me in a jujitsu front strangulation hold. It's like -- I -- I don't know the exact terminology for it, but it's, like, your front arm goes across the throat, and you strangle somebody from the front. You wrap your arms around, and then you put pressure on the throat from the front. And he put that on me. And I just -- I didn't fight. I didn't do anything. I just kind of stood there.

And -- and I don't know why he stopped. Like, I don't know if it was how I was looking or because I wasn't fighting back, he stopped. And he was really angry at me still. And then he picked me up by both my arms, and then sat me in a chair, and then leaned over the chair like -- kind of like that overtop of me and wouldn't let me get up. And I was crying and asking to leave and he wouldn't let me. And he said that he wasn't going to get up until I agreed to stay. So, I didn't know what else to do, so I said, Okay, I'll stay.

And then he moved away from the chair and let me get up, and then started to take all the drawers that he had thrown and put them back and take all the clothes that he had thrown and put them back into the closet and stuff. [2] [ 7 ] Their child was home and watching cartoons when this occurred. [ 8 ] SW elaborated that when KP told her to leave, she started packing a bag and it was then that he put her in the chokehold. The chokehold consisted of him taking his right front forearm and placing it against her throat and reaching around to tighten it. KP was a practitioner of Jujitsu.

[ 9 ] KP is 6 feet, approximately 180 pounds. SW was around 120 pounds at the time and a lot shorter that KP. [ 10 ] SW could not say how long the chokehold lasted stating that “it felt like minutes to me, but it may have only been seconds.” There was pressure and the “air was cutting for sure,” [3] but she did not lose consciousness. She described having a sore neck for a couple of days afterward. There were no visible injuries. [ 11 ] After SW agreed to stay, KP proceeded to pick up the things that he had thrown on the floor and began putting them away.

They did not talk about the incident after it happened. [ 12 ] SW said that the incident just affirmed her desire to leave KP but she explains “I knew that if I was going to leave, that I had to be, like, smarter about it. I couldn’t just confront him about it and expect to have a conversation about it.” [4] This led to SW moving out to the coach house in April of 2022. [ 13 ] In April of 2022, SW moved into the coach house. SW would work after daytime hours when KP was home from work. KP had been a stay-at-home dad for some years until May of 2022 when he began work as an excavator.

Their child was being cared for by both parties according to their work schedules. [ 14 ] In June of 2022, SW decided to go to England on a 10-day trip. She explains that she felt a need to get far away from KP who she felt was stalking her and monitoring her social media. In cross examination, SW admitted that, while she was in England, she was also planning on seeing a man she had recently met. She hired a daytime nanny to look after V while she was gone. [ 15 ] She returned home on June 28 th , 2022.

Sexual Assault [ 16 ] On June 30, 2022, SW decided to go talk to KP about a formal separation moving toward divorce. He asked her to come over to the house and he told her that he was prepared to be calm and logical about it. She went over to the house at about 8 or 9 that morning. [ 17 ] The following passage on pages 14 and 15 of the October 27 transcript describes what happened next: …And we started discussing, you know, like, how things had been because prior to this, I was living in the coach home on my own, but there had been a lot of incidents with him, like, not letting me be.

Like, he would come into the coach home unannounced all the time. He would -- he was accusing me of, like, cheating. And he was, like, screenshotting my social media and accusing me of talking to men all over the place. [5] …And then as we were discussing more and more details and more the reality of the situation started setting in, he started getting really anxious and hyper. And it -- I kind of -- well, from being with him for so long, I -- he has certain stages of his anger. So when he first starts off he's very, like, calm and charismatic and easy to talk to.

And then it kind of develops into, like, a hyper sort of agitated state where he does lots of, like, quick movements and he can't sit still, he starts moving around a lot. So when that happened, I knew that this conversation probably wasn't going to be doing great, so I moved my son and our dog into my studio, over to where I was staying. And I moved them into there because I knew that this was probably going to escalate into an argument. [6] So I moved my son over there so he wouldn't have to be part of that and came back to talk to him. And things just got incredibly hostile as soon as I re-entered the house.

He tried taking my electronics from me. And then he was pleading with me to work on things and to stay. And I said, No, like, this -- I've thought about this, I've taken time to think about this, and this is what I'd like to do. I'd like to move forward with separation. And that's when he picked me up over his shoulder and carried me upstairs to our -- to the bedroom and told me that if I wasn't going to love him, that he was going to give me a reason to hate him. And then that's when he pushed me onto the bed and started trying to pull my clothes off and started assaulting me sexually. [7]

[ 18 ] The sexual assault consisted of KP pulling open SW’s sweatpants causing them to tear at the seams and penetrating SW’s vagina with two fingers. She thought this lasted for a couple of minutes. She explains at page 18 of the October 27 transcript: He heaves me over his shoulder onto the bed and then, like, hold -- holds me down, pins me down so I can't get up. And then he starts trying to rip my pants off and, like, keeps pushing me back when I keep trying to get up and, like, ripping the band of my pants. Like, they're quite stretchy, but he was trying to, like, rip them off.

So the waistband was getting all ripped and you could hear, like -- like, snapping. Like, the threads were snapping. And was, like, screaming at him to stop and asking him to stop. And then he, like, kept pushing me back. And then he inserted -- he started trying to finger me with his two fingers. He was doing it quite -- quite aggressively. And I -- I was asking him to stop and I was crying. Sorry. Just give me one second. [8] …And I was asking him to -- I was asking him to stop and he wouldn't. So he kept doing that and trying to take off his own pants kind of, like -- because I was struggling.

And he was kind of trying to hold me down but trying to do things at the same time. And then I didn't -- I remembered -- this is going to sound so stupid, but I remembered something I heard on, like Oprah a long time ago where people reason with their attackers and they say things, like, that just kind of shock them into stopping. [9] So I know that he cares a lot about his reputation in town, so I said, If you continue with this, I'm going to tell everybody that this has happened. I'm going to let everyone know what you've done to me. And he stopped at that point and stepped back.

And that gave me -- it gave me the moment to, like, jump off the bed and pull -- hold my pants and just run down the stairs. And I -- that's where my phone was -- got left on the bench downstairs because when he picked me up, it got left behind. [10] [ 19 ] SW explained that she did not call the police at this time as she was afraid that this might escalate things. KP was still upstairs and there were guns in a safe in their bedroom.

Instead, she called his father as apparently this had worked in the past to calm KP down. [ 20 ] KP ran past SW at some point while she was talking to his father, and he went to the coach house. She chased after him. He grabbed the laptop from their son, and he grabbed her phone from her and returned to the house. [ 21 ] SW ran after him. She had a client that would be arriving at the coach house, and she also wanted her phone.

SW testified that as she reached for the phone, KP grabbed her wrist “and twisted my arm behind my back and told me if I kept reaching for the phone, he was going to break my arm.” [11] [ 22 ] KP’s father called him on his phone and SW left to go meet her client. She described her client as “really edgy and apprehensive because the doors were all open.” [12] [ 23 ] SW put her lab coat on over her clothes. She was still wearing the sweatpants. The coat was done up and went down to below her knees. SW explains that “I told my client what had happened.

And then I proceeded to do her appointment because I felt safer with somebody there. Like I knew – I knew that he wouldn’t come into the studio with my client there.” [13] The appointment lasted 2 hours. [ 24 ] After her client left, SW went back to the house. KP’s parents had arrived. SW described KP as completely irrational. But then he started to cry and get upset “acting remorseful for what had occurred and, you know, trying to get me to feel sorry for him and apologizing and stuff” [14] . [ 25 ] Eventually, KP left with his parents and SW describes feeling numb.

She phoned her father who is a retired RCMP officer. He urged her to call the police. At around 6:00 pm she did call the police. She gave a verbal statement to Constable Hodgson. She said she was not ready to come give a statement in person at that time. Instead, she decided to focus on getting an EPO and to remove the weapons from the house on the advice of the police. SW did not end up giving a formal statement until September. She had tried to give one at points over the summer, but Constable Hodgson was away and other officers did not want to take the statement.

[ 26 ] SW did give Constable Hodgson her sweatpants which were photographed and marked as an exhibit in these proceedings. The photographs depict a grey pair of sweatpants that are torn along the waistband in several places. There is also a tear in the crotch of the pants. Emergency Protection Orders (EPO) [ 27 ] SW received an EPO on July 1, 2022. SW revoked the EPO a few weeks later on July 20, 2022.

She explains that she revoked the EPO because she felt sorry for KP, but she also said that she regrated the withdrawal later: If I could go back in time, I would undo that because I realized that it was lies that he was going to leave me alone and that he was going to stay in his own place. I did it because I felt sorry for him because he was nonstop apologizing and begging me, and he didn't want to stay at his parents' house anymore.

I would not -- if I could go back in time, I would not have taken that [15] [ 28 ] SW described getting another EPO in September when KP showed up at their son’s school in an agitated manner, picking up their son and swearing at her [16] . [ 29 ] Their son was not part of either EPO. Cross Examination of SW [ 30 ] SW was vigorously and at times aggressively cross examined by Defence counsel. It was put to her multiple times that she was making up the allegations in order to either hasten her divorce or to gain sole custody of their child.

She consistently and unequivocally denied these accusations. [ 31 ] Defence counsel first suggests that SW is making up the assaults at page 45; lines 7-22 of the Oct. 27 transcript: Q. I'm going to suggest to you and -- you wanted V out of the house when this discussion was going on for one basic reason. That's because you didn't want V to hear that his dad was trying to save the marriage and his mother didn't want to. Isn't that correct? A That is absolutely not correct. Q All right. A I didn't want V there because K is explosive and reactive when he's angry, and I did not want V to be part of that. Q Okay.

And -- and, ma'am, I'm going to suggest to you that you're planning this whole thing, okay. You're putting people where you want people, correct? A Not correct. [17] [ 32 ] At page 88, SW denies that she lied about the assaults: Q. Ma'am, in fact, what happened was you wanted out of this marriage. He wasn't abusive. A Yes, he was. You keep saying that he wasn't, but he was.

Q Okay. Ma'am -- A Why would I lie about this? Q Well, probably because you want custody of your child. A This has been the hardest thing I've ever – Q Okay. A -- gone through. I have been -- had to flee my home with my son. I've had to -- I had to dissolve my business. I lost all of my clients when I had to go through court with him. This has been extremely hard on me financially and emotionally. [18] [ 33 ] At page 111, while discussing the circumstances of the January 30 alleged assault, SW once again denies that she made up the allegations: Q. Okay. And you wanted to get as much custody of V as you could.

A At that point, we weren't talking about that. Q Okay. A I was -- there was no nefarious plan to steal my child away. I just wanted him to be safe, and as soon as things became unsafe with his father that's when I said we need to do something about this. Q Okay. And if you don't practice in you said deception, then why didn't you just come out and tell K that there's someone else? A Because of exactly what had happened because he is completely irrational and emotional and violent.

If I had told him there's another man, he probably would have shot me. [19] [ 34 ] And again, at page 53 of the October 27 th transcript: Q. Ma’am, I’m going to suggest to you that in fact K was a great father and you were an absent mother. A I wouldn’t not say that is accurate. Q Okay. And I’m going to suggest to you, you know that he was going to get the upper hand if it came to any sort of custody. A How could I have premeditated that in that moment? How could I even think that far ahead? Q And that's why on September 2nd you went to get another EPO, didn't you?

A I did, because K assaulted my son at school, in the yard -- Q Okay. A -- at the first day of school. He picked him up and carried him away [20] What SW told her client [ 35 ] Defence counsel on behalf of KP argued that SW’s evidence should be deemed less reliable and credible because of inconsistencies about whether SW initially told her client about the details of the alleged sexual assault.

[ 36 ] SW is asked what she told her client and at page 49 of the October 27 transcript, SW says: A I don't recall if I said she knew in detail. I did say that I -- that she had known something had happened that day. Q Well -- so you told her about the sexual assault? A I told her that there was an incident. I don't know if I went into detail of sexual assault.

She just knew that something had happened because, I mean, she came to the house, all the doors were open, and she could tell something had occurred. [21] [ 37 ] Later in the cross examination, SW is asked again what she told her client, and she responds “I don’t think I gave her exact details of everything that had happened. I think I told her there had been an incident” [22] . However, at pages 84 and 85 of the October 27 th transcript, SW goes on to state that she may have shared more details with her client: A. I told her that I had had a fight with my husband, or estranged husband.

I said I had a fight with K and I had his parents coming. And I – I think I told her that he had assault me…. Q Okay. So you told her that he sexually assaulted you? A Yeah. And then she said, Well, should I go. And I said, No, it's safer with you here. So she agreed to stay there until his parents arrived, which I did her appointment. And then she left. And then I went over to the house to speak with his parents. Q Ma'am, I'm going to suggest to you that you in fact never told your client that you had been sexually assaulted.

A Well, it's really hard for to -- me to remember the exact details of our conversation, but I do believe I did tell her that I was assaulted. [23] [ 38 ] And at page 105 of the October 27 transcript: Q. So can you, please, relay the content of your conversation with your client? A. She came to the house and saw that all the doors were open, and the gate was open, and was concerned. She knew that something was going on. She said, What's going on? I said, There's been an incident. There's been -- K and I have had an altercation.

I can't remember if I said I was assaulted right that second but I told her something was going on. And she knew and she said, Are you okay? And I said, No, I've -- I was assaulted by K or I was hurt by K. Whatever word I exactly used I can't quite remember but I relayed to her that there had been an incident, and that I was waiting for his parents to come. And then we -- she said, Should I go, and I said, No, please, stay because it's actually safer for me if you're here, if you're okay with that, and she stayed…. [24] [ 39 ] There was an Agreed Statement of Facts filed with respect to the client’s evidence.

In this statement, the client, Tiffany, says that she came to the studio on June 30, 2022, to get her lashes done. Normally she would get buzzed into the Coach house, but nobody was there when she arrived. The Agreed Facts further state: She noticed SW’s gates were both open to her studio, and her house door was ajar as well. She waited around for 5 to 19 ten minutes but didn't hear anything. She felt it was pretty quiet. She pulled out her phone and just messaged her when she came out a couple of minutes later. Tiffany characterized SW as being a little safe and cautious as a person.

During the appointment she had – SW had to take multiple calls to someone who could come and attend to V(phonetic) and her husband. She believed it was SW in-laws.

Tiffany believed SW was distraught and embarrassed. The appointment lasted for two hours. She was unsure of what SW was doing, going back and forth, but she brought her son into the other space where it seemed like something other than yelling was going on. …She believes someone came while the appointment was happening. She believes it was her father-in-law but did not see anything [25] . Sweatpants [ 40 ] Defence counsel suggests to SW that she told Constable Hodgson in her recorded statement of September 27 that her sweatpants were ripped right off and not just torn.

SW agrees that she told the police that her pants were ripped completely off. She explains that they were not in fact ripped all the way off stating, “No, they weren’t ripped in half off me, but I think I meant that he was ripping them right off – trying to rip them off me.” [26] Defence counsel suggests that the complainant’s evidence is a lie: Q. Okay. And do you think you may have said that because you didn't realize until October when you had to bring the pants in -- A No. I was -- I was trying to be honest with the statement.

I think I just misunderstood that he meant like tore them off me or was trying to rip them off me because like he does ask if the underwear -- I said no underwear was on, and I put -- I said he ripped -- he ripped the pants off, like he was trying to rip off. [27] Q And would you agree the confusion came when the constable asked to see the sweatpants, and you realized that the appearance of the sweatpants is not going to match the description you provided? A No. There was no deception. I wasn't trying to lie about that. Q Is that because you wouldn't try to deceive the officer?

A I wouldn't try to deceive anybody. I was just -- he asked me to bring the pants in; I bring the pants in. I think if I was purposely trying to deceive I wouldn't have given him the pants. Q Except is it possible that you didn't have any pants that fit the description, so you gave him a pair that you thought that best fit -- A Absolutely not. Q -- because you didn't have any pictures of the pants either, did you, on the day in question? A No, I didn't but I'm not going to try to deceive an officer. Q Okay. Would you try to deceive somebody else? A No. Q You tried to deceive K, didn't you?

A No [28] [ 41 ] Defence counsel also suggests that the sweatpants are just well worn and were not in fact ripped by KP. SW denies this stating that the sweatpants were new. Guns [ 42 ] Defence counsel also challenged SW on her handling of the guns that were in the bedroom safe on June 30. SW told the

police about the guns, and they advised her to remove the guns and change the password on the safe. She did these things. Defence counsel suggested that her complaint about the guns was a part of a scheme of manipulation: Q. Okay. And even the whole gun stuff, you blew that out of proportion that he harm himself, correct? A I did not blow that out of proportion. Q Oh. A There was many incidents where he threatened to kill himself. He's taken the gun out of the safe in front of my son. He's done many, many incidents where he was not a responsible gunowner.

Q Ma'am, you did that solely to create hysteria around what happened. A I did not. I was being honest about past events. There's no hysteria that I created. I was being honest. Q Those guns have never been pulled out before. A Yes, they have, many times. Q You have never been threatened by those guns before. A He threatened himself. And having the gun out in the open around me is an open threat. Have you ever -- Q And he's done that? A Have you ever had a gun pulled out in front of you? Have you ever had somebody walking around hysterical holding a gun around you?

You'd feel very threatened whether they're pointing it at you or not. [29] KP [ 43 ] KP testified in this trial. He said that he had been a stay-at-home dad for six years and helped SW build a business. He also took care of his son and did chores such as cooking meals and cleaning. [ 44 ] In his spare time, he trained in the art of Jujitsu in an effort to be “more calm in – in hostile situations.” [30] KP said he taught SW some moves, and they would rehearse these moves and video tape them. [ 45 ] KP testified that he did not assault SW by placing a chokehold on her in February.

He admitted that he may have thrown some clothes on the floor but denied choking SW: Yeah. So February I was doing a renovation, finishing a tile floor, and there was a bunch of clothes on her bed. She told me that she was unhappy, and I threw all her clothes off the bed to sit down, and I said, How can you be unhappy? Look what I just did for you. And I just kept saying, like how -- how can you be unhappy, and I walked around the room pointing out everything that I did.

And that's -- that's all that occurred. [31] [ 46 ] KP testified further that he was “totally unaware of a breakdown of the marriage” before the June 30 incident. He denies that SW told him that she wanted to leave him. He says that “I knew that SW was going through a bit of issues mentally…. I…encouraged her to take some time and go into the studio when she needed it because I know V is a lot. And every – every night there was dinner made, and anytime she wanted to have a break it was there for her.” [32] He states in his testimony that “I would never hurt my wife.

I love my wife.” [33] [ 47 ] KP is asked what led up to her trip to the UK and he responds: A. Yeah. So she needed some time to gather her thoughts, and she thought it would be a good idea just to go into the studio. And I -- I

said, yeah, whatever you need. And then she came home and she says, I want to go on a writer's retreat to the United Kingdom, and I'm like, okay, we can make that happen. So I put the expense on my credit card. Paid for her whole trip. And she was telling me that it was -- and I'd asked her, I said, okay, well, you're going out -- you're not meeting anybody, right? Like you're going to be safe out there? I'd asked for an itinerary; she never provided me. And she told me that this was strictly to write her book. It was a book retreat. [34] [ 48 ] KP says that SW returned from the UK after about 10 days.

On the day of her arrival, he and his son did some sidewalk chalk for her. According to KP, she came home the morning of June 28 th in her truck, and they had breakfast. Right after breakfast, the following conversation occurred: ….And then she said, I need to talk to you about something, and I was just caught -- kind of caught off guard. And she said, I'm happier being alone. And that was kind of the first time I -- I knew that. [35] [ 49 ] KP said that he got emotional and told SW that he would do anything to make the marriage work: Q. So you -- you broke down and cried, and then what happened?

A And then I -- I said, This doesn't make sense. There's no way that you're going to give up on our relationship. We've -- we've worked through everything together. We did home renovations when we moved provinces. We raised a kid. And I said, There has to be somebody else. And she just told me, There's nobody else, you're going crazy. I said, This does not make sense. So I grabbed her cell phone, and I pointed it towards her face because she locked her screen. She didn't tell me the access code to it. And I turned it towards her face, and then she became pretty distraught about that.

I think she realized at that point that her face could unlock the phone, and she just started to panic. Q Okay. And then what happened? A And then I just said to her, I'm -- I'm going to wait around until this person phones. And I held her phone, and she just kept trying to get it from me. And then I hid it in my son's room, and -- so she couldn't find it. And then she ended up -- she said that I was being unreasonable, and she's like, I'm going to phone your parents. I said, okay, go ahead, phone my parents.

I said, okay, go ahead, phone my parents. [36] [ 50 ] KP said that after relieving her of her phone, he went to the coach house and took the laptop that his son was using to watch videos. He then took the laptop back to the house and hid it. He explains: I thought I could grab more evidence by finding the laptop, so I went into her studio. That’s where V was watching a show on the laptop. And I grabbed it, came back into the house, and hid it as well. [37] [ 51 ] KP denied sexually assaulting SW stating “that did not happen. I love my wife, I would done anything for her.

I swear to God.” [38] [ 52 ] I note that, although KP says this event happened on June 28, it appears that both parties are referring to the same event as they both talk about KP taking SW’s electronics and her calling his parents. It is clear that this event occurred on June 30, 2022, based on the initial report to the police which occurred at 6:00 pm on the June 30, 2022. Cross Examination

[ 53 ] In cross examination, KP denied that he ever understood his wife’s unhappiness as having anything to do with him. He denied that he understood that her unhappiness had to do with their marriage until she told him on June 30, after returning from England: Q. Because I think you'd agree that you -- there was sort of some things that were leading up to June that you -- about your relationship with SW that you knew things weren’t going well. A In our relationship, I would say I was unaware. When it came to her personally, I was aware she had her own issues going on. Q Okay.

A She also said to me that she wanted to -- she was very unhappy. She didn't know who she was. She was -- I don't even want to put it on record but the things that she said were very concerning for me. Q Okay. And so you didn't think that it was because of your relationship with her. A Not at all. Q Okay. You knew that she was unhappy? A I knew that she was going through some distress in her own life mentally. Q Okay. But you know in February when you were talking about renovations she took issue with them, and you said, Why are you -- why are you so unhappy.

A In February she said, I'm unhappy, and so she took issues with -- not anything pertaining to me, pertaining to life in general. Unless somebody straight up says, I'm unhappy with you, how are you supposed to know? [39] Clothes Incident [ 54 ] The Crown suggested to KP that he was very angry during the February incident even on his own admission as evidenced by his throwing SW’s clothes on the ground.

KP denied being angry and said that he was not angry but was just frustrated. [ 55 ] KP maintained that all he did was throw the clothes off the bed – and he demonstrated that he did this in a sweeping motion - and he denied choking SW or putting her in a chair. He denied that they ever discussed their marriage. In the Dec 17 transcript, at page 4, he says: Q. Okay. And so she said that she was unhappy. You moved the clothes off. A Yes. Q Okay. And you had a calm conversation as to why she was unhappy?

A I said I was kind of being authorative with saying how can she be unhappy with -- with all the things that I've just done for -- for her. Q Okay. And so as a result of that conversation, you guys didn't talk about your marriage? A No, we did not. Q Not the reasons for why she was unhappy? A That's what I was asking her, Why are you unhappy, look what I've done for you. I still don't know why she was unhappy.

Q Okay. A I have a very good suspicion why she was unhappy after reading everything that I've come into counter (sic) with, but I had no idea at that time [40] Electronics [ 56 ] KP denied that he assaulted SW on June 30. He denied any violence and explained that all he did was take SW’s phone and laptop in an effort to get at the truth as he suspected SW was seeing someone else: Q. Okay. Where was V when she asked you to have a conversation?

A So we ate breakfast on the kitchen table all together, and then after that we were talking and she said she wanted a separation, and I kind of grabbed phone off of the bureau that we have, and then tried the face recognition with her. She didn't -- and then over time she ended up bringing V into the studio. She's like, okay, just wait a minute. I'm going to put V in the studio, get him set up so he doesn't have to hear all this. Q Okay. A Yeah. Q And so V was there when you put the phone initially up to SW’s face? A Yes. [41] [ 57 ] KP denied that he was “very upset” with SW on this day: Q. Okay.

I am going to suggest that you guys had an argument that morning, and that you were very upset with her because you realized maybe she was cheating on you. A I would disagree with that. Q Okay. But that you did some things that -- you lost your cool. You didn't really -- that's something that you just don't do. Would you agree with me on that? A I didn't lose my cool. Q Oh -- A I was -- I was pretty strategic on how I was trying to obtain that information, I believe. Q Okay. A Yeah. Q So calm and collected. You went through the cell phone issue. You weren't doing anything.

You were just calmly placing it in front of her face, she turns away, then you go and get the laptop. A I was a little frustrated, like I said. I wasn't calmly. I was -- came up to her and tried to face recognition, and then she turned away. And that's when I started accusing her, there has to be somebody else, (SW), tell me the truth, what's going on. It was like that. Q Right. And so you were angry. It's -- I mean -- A I'd say -- I don't know -- I -- I wouldn't say that that's anger, to be perfectly honest. I’d say more frustration and just trying to understand where she's coming from. Q Okay.

A I'm not -- you know what, I'll tell you something. In order to have a relationship for 17 years, something had to have been right. I lovedmy wife with everything that I had. Q I'm going to suggest that you just lost your cool that day. A That's an okay suggestion but I disagree with that. Q And that you actually did throw her over your shoulder. A No, I -- I don't -- I wouldn't have hurt my wife. Q And you said, If -- that she didn't love you, she would make -- you would give her a reason to hate. A I'm sorry. I don't agree with that statement.

Q And that you had gone to the bedroom, you had tried tearing off her pants, she was saying no multiple times there, and she wasstruggling against you, and you had used her fingers and penetrated her. A I'm sorry -- I'm sorry, I just -- it's really difficult to hear that. I'm sorry, Ma'am. That's just not what happened, okay.[42] [58] KP agreed that his father came after this event to calm everyone down. LEGAL ANALYSIS Sexual Assault [59] 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 elements are objective. The third element is determined by the subjective state ofmind of the complainant. In this stage of the analysis, the accused’s perception of the complainant’s state of mind is not relevant. Theaccused perception of events becomes relevant only when assessing the mens rea of the offence. [60] The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or willfullyblind to, a lack of consent on the part of the person touched.

The accused may challenge the Crown’s evidence of mens rea by assertingan honest but mistaken belief in communicated consent. The focus at this stage shifts to the mental state of the accused, and the questionbecomes whether the accused honestly believed the complainant said yes through her words and actions. The defence does not imposeany burden on the accused, it is simply a denial of mens rea. R v Ewanchuk, (1999), (SCC), 1999 Carswell Alta 99SCC at para 49, R v Barton,

(2019) SCC 33 at para 90 [61] Consent is defined in s 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity inquestion.” For voluntary agreement to exist, the complainant must be conscious, and the consent cannot be coerced. Consent must relateto every sexual act in a particular encounter, and it must be given at the time the sexual activity occurs. It must be affirmativelycommunicated by word or action. There is no such thing as implied consent. R v J.A. 2011 SCC 28 at para 31, Barton, at para88, Ewanchuk, at para 36. Standard of Proof [62] Pursuant to s 11(

d) of the Canadian Charter of Rights and Freedoms, an accused person is presumed to be innocent. TheCrown has the burden of proving the guilt of the accused beyond a reasonable doubt. That burden never shifts away from the Crown. [63] In the case of R v Lifchus (SCC), [1997], 3 SCR 320, 1997 Carswell Man 392, at para 31, the SupremeCourt of Canada explains what is meant by the phrase “beyond a reasonable doubt.” A reasonable doubt is not a doubt based uponsympathy or prejudice. It is a doubt based on reason and on common sense and it is logically connected to the evidence or absence ofevidence.

A reasonable doubt is not imaginary or frivolous in nature. In R v Starr, 2000 SCC 40, at para 242 the Supreme Courtconsidered the meaning of reasonable doubt and concluded that beyond a reasonable doubt would lie much closer to absolute certainty

than to a balance of probabilities. Proof beyond a reasonable doubt means that a trier of fact cannot convict by finding that the accused isprobably guilty; they must be sure that the accused committed the offence. However, to be sure of something is not to be absolutelycertain. That again would be too high a standard. Chief Justice McEachern in R v To, (1992) (BC CA), 16 BCAC 223(BCCA) states at para. 41 that: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusions can bereached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. [64] In the case of R v KHT, 2017 ABQB 753 at para 7 and 8, Justice deWit points out that one would never use the criminalstandard of proof in making even the most important life decisions. One proceeds through life “by assuming that certain events will in alllikelihood take place and that certain facts are probably true.” This is too low a standard for the criminal law.

If a trier of fact cannotdetermine with certainty who is telling the truth or whether something occurred, the burden of proof will not have been met by theCrown. Proving something beyond a reasonable doubt, therefore, is not an easy task because the ramifications of a criminal convictionand possible loss of liberty are very serious. Credibility and Reliability [65] Determining whether the Crown has proven the offence beyond a reasonable doubt will depend on the credibility andreliability of the witnesses, including the accused. [66] Credibility and reliability are separate and distinct concepts.

Credibility refers to a witness’s veracity, reliability to theiraccuracy. Reliability will depend on a witness’s ability to observe, recall, and recount the events properly.

Both credibility andreliability will look to the level of detail provided by the witness, the demeanor of a witness, and inconsistencies, both internal andexternal, in the witnesses’ testimony. [67] A credible witness can be an inaccurate or unreliable witness but a witness who lacks credibility, will not usually be reliable.A trial judge can accept some, none, or all of a witnesses’ testimony so it is not necessary to deem a witness a liar or to find them totallyunreliable in order to place little weight on their evidence. [68] In cases of sexual assault, the court must take additional care to avoid myths and stereotypes when assessing credibility.

W(

D) Framework [69] When the accused testifies, any credibility analysis proceeds through the “W(

D) framework.” This framework was firstoutlined in the Supreme Court of Canada case of R v WD, (SCC), [1991] 1 SCR 742. Several subsequent cases haveserved to further explain and refine the analysis. The Alberta Court of Appeal considered the test in R v Ryon, 2019 ABCA 36 and R vAchuil, 2019 ABCA 299. [70] The case of W(

D) provides guidance to trial judges attempting to determine what reasonable doubt means in the context ofconflicting testimony. Conflicting testimony may include not only evidence given by the accused, but also other exculpatory evidencefrom other sources. At the same time, the W(

D) analysis refers only to exculpatory evidence, and not to inculpatory or neutral evidence. [71] The test for a Judge sitting alone can be formulated thusly: First, if I believe the evidence of the accused or other exculpatory evidence on the elements of the offence that must be proved, I mustacquit. Second, even if I do not believe the evidence of the accused or other exculpatory evidence on the elements of the offence, but am left in areasonable doubt, I must acquit.

Finally, even if I reject the evidence of the accused or other exculpatory evidence, or even if it fails to raise a reasonable doubt, I muststill ask myself whether, on the basis of the evidence I do accept, the Crown has proven each element of the offence beyond a reasonabledoubt. [72] A proper application of the W(

D) test requires an evaluation of the credibility and reliability of the evidence. As Justice

Martin says in Ryon , (para 51 ), the trier of fact should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused. If, however, after a careful consideration of all the evidence, a trier of fact is unable to decide whom to believe, they must acquit. ANALYSIS AND FINDINGS KP [ 73 ] KP’s demeanor while testifying did not raise any concerns. He was calm and emotional where appropriate. Some of the things that KP said, however, did raise concerns. Downplaying Anger [ 74 ] I find that KP downplayed his obvious anger in both the February and June incidents.

He maintained that he was not angry during the February incident but was just frustrated. In cross examination, KP described how he pushed the cloths off of the bed and demonstrated a sweeping motion. I find that throwing someone’s clothes off the bed in a sweeping motion so they end up on the floor, is more consistent with anger then frustration. [ 75 ] Similarly, KP stated that he was not angry when he took SW’s phone from her on June 30, but was just frustrated. I find that grabbing SW’s phone and putting it up to her face in order to open it, in front of their child, betrays anger not frustration.

Running into the coach house and taking a laptop from a ten-year-old child who was using it so that you can hide it and then check it later for evidence of cheating, betrays extreme anger or rage. [ 76 ] Certainly, given that KP says he was just told that very June day that his wife wanted a divorce and given that he clearly suspected by the end of June that she might be cheating on him, it is more likely and consistent with reality, that he was very angry and not simply frustrated.

Denial of Marriage Difficulties [ 77 ] KP consistently denied that he knew that the marriage was in trouble until the conversation on June 30th when SW told him she wanted to separate. I do not believe this evidence. [ 78 ] It does not make any sense that a person would know that their spouse was unhappy enough to leave the family home, as SW did in April, but not know that this unhappiness had something to do with the state of the marriage. At the very least, it would raise questions about the marriage. Questions that KP says he did not ask. [ 79 ] KP;s own words are instructive.

In cross examination, he was asked by Crown counsel when he started working out of the home and he said: I asked SW whether or not – what can I do to get her back faster . She said, Get a job. The next day I got a job. Had an interview on my birthday…so May 25… [43] [ 80 ] So contrary to his insistence that he did not know that SW was having problems with the marriage until she told him at the end of June, this statement makes it clear that he certainly knew in May while she was living in the coach house.

Hence, the need to get a job in order to “get her back faster.” [ 81 ] I find that KP consistently attempted to portray himself as the unwitting victim of SW’s bewildering unhappiness. I find that he was extremely angry and hurt but he felt justified in this anger and hurt. This justification is made easier if his wife’s unhappiness has nothing to do with him. It is a self-serving denial.

[ 82 ] This same justification is why KP very matter of factly told this court that he grabbed SW’s phone from her and attempted to open it and then took the laptop that his son was using in order to look at this so that he might get the “truth” about his suspicions that SW was seeing another man. He then hid these devices from SW. While these actions may be understandable on an emotional level in the context of a breakdown of a marriage, KP did not betray any insight into the inappropriateness of this behavior when he testified to it many months later.

There was no hint that he thought there was anything wrong with what he had done – even the parts that involved his son. [ 83 ] It was clear that, just as KP felt entitled to an itinerary of his wife’s UK trip even though she was not living with him and they were estranged at that time, KP felt entitled to forcibly take SW’s devices from her without her permission. [ 84 ] It is this same entitlement- an entitlement fueled by pain and anger - that allowed KP to assault SW in February and again in June of 2022. SW [ 85 ] I find that the complainant gave evidence with a demeanour that was believable.

She was emotional where appropriate and frustrated at points that it made sense. Contrary to what Defence counsel suggested, she had a lot of detail in her evidence and on the key points she was very consistent. [ 86 ] However, there were points of concern raised by Defence counsel and I will address these now. Sweatpants [ 87 ] It does seem clear that when SW gave a statement to the police on September 27, 3 months after the assault, she told them KP ripped her pants right off her.

She testified that this was a mistake and that,while they were ripped, they were not ripped right off and that perhaps she was referring to his attempt to rip them off. [ 88 ] The Defence theory goes as follows: SW lied about the pants being ripped in half in September when she talked to the police. When she was asked to turn over the pants in October, she realized she didn’t have sweatpants that were torn in half, so instead, she gave a pair of well-loved sweatpants that were just naturally frayed from long wear.

However, if this scheme is to be believed why wouldn’t the complainant just rip the pants in half before she gave them to the police in order that they be consistent with her statement to police. Or alternatively, she could have declined to give them any pants at all. The theory that her inconsistency on this point is an indication that she is lying does not make sense on close analysis. [ 89 ] Moreover, I find that the pants do not look like an old, but well-loved item of clothing, with some wear and tear.

They look like pants that are ripped at the seams around the waist in several places and in the crotch just as the complainant described. [ 90 ] I find that the state of the complainant’s sweatpants corroborates her testimony. What SW told her Client [ 91 ] There is evidence from the client, Tiffany, that SW did not tell her that she had been assaulted either sexually or physically. SW said different things about this in her testimony, at points suggesting that she did tell Tiffany that she had been assaulted.

She also was quite clear that she did not really recall what she told her client and that she did not think she shared a lot of details. [ 92 ] Tiffany does provide details that are corroborative of SW. She makes clear that things were amiss on June 30 when she

arrived. Normally, she gets buzzed in but on this day she did not. She noticed that gates were both open to the studio and the house door ajar. SW was late for some 5 to 19 minutes. During the appointment, SW took several calls regarding having someone come to attend to her son and her husband. SW appeared “distraught and embarrassed.” SW’s father-in-law arrived that day. [ 93 ] I find that SW just does not have a good memory of what she told Tiffany on that day right after she was assaulted. She admits this at several points in her testimony.

Motive to Fabricate [ 94 ] SW was challenged multiple times that she was fabricating the assaults as a way of expediating her divorce and keeping sole custody of her child. SW consistently and vigorously denied these assertions. [ 95 ] As to the argument that SW was lying to somehow expediate the divorce - it is not at all clear how making up allegations of assault would achieve this goal. While it can be emotionally challenging to divorce, it is not actually difficult to get a divorce in Canada.

One does not need to prove that the other party was abusive to achieve it. [ 96 ] Related to a motive to get a divorce, there was also a kind of oblique suggestion that somehow SW might lie about an assault because she was having an affair and needed to, in some sense, hide this secret. I pause to note that a suggestion that a person who cheats on a partner is, simply by virtue of this cheating , less worthy of believe in a sexual assault trial, does not logically make sense, and invites inappropriate “rape myth” reasoning.

There are also no facts to support the claim, either that SW was cheating as she indicates she began her relationship after the estrangement in her marriage, or that such behavior, were it to have occurred, would have led her to make up assaults to somehow hide this fact. SW was forthright in that she did want to move on with someone else, but she said she did not want to tell KP as she was afraid he would not take it well. This would not be an unreasonable fear in the circumstance of any marriage breakdown, but in the context of their particular marriage, it makes even more sense.

KP in his own evidence, admitted to taking SW’s electronics and was clearly resistant to acknowledging the breakdown of the marriage. [ 97 ] Finally, I find that SW’s behavior was not consistent with someone who was lying to gain sole custody of their child. Both SW and KP appeared to be loving and involved parents. There is no reason that SW would think that the only way she would get any custody of her child was if she made up some elaborate lie about an assault involving KP.

She did not present as someone who was a risk of losing custody and might be motivated by such desperate measures. [ 98 ] There is also no evidence that SW was actually motivated by a desire to keep KP from their son. Even after she left the residence in April, after the first assault, the two were sharing custody. She obtained an EPO in July, but that EPO did not include her son.

Significantly, she dropped that EPO a couple of weeks later out of sympathy for KP, demonstrating a lack of animus. [ 99 ] By September, when she received the second EPO, she was fearful for her son due to KP’s continuing erratic behavior. That erratic behavior was on full display on June 30 when KP put SW’s cell phone up to her face to open it and then later forcibly took his son’s laptop from him and hid it. I find that SW’s fear after this event was grounded in what was happening at the time. It was reasonable and does not indicate a motive to lie to obtain sole custody.

CONCLUSION [ 100 ] In conclusion, I find that the Crown has proven their case beyond a reasonable doubt. I disbelieve KP’s evidence and I accept the evidence of SW. I find the facts are as described by SW. These facts disclose an assault by choking in February of 2022 when KP put a chokehold on SW’s neck for enough time to cause some air restriction and a sore neck.

It also discloses a sexual assault on June 30, 2022, when KP picked SW up and took her to the bedroom, stating that if she wasn’t going to love him, he was going to give her a reason to hate him, and forcibly inserting two fingers into her vagina. [ 101 ] I find KP guilt on both counts. Heard on the 30 th day of January 2024.

Dated at the City of Calgary, Alberta this 8 th day of February 2024. S.E. Pepper A Justice of the Alberta Court of Justice Appearances: P.Bigg for the Crown J.S.Virk for the Accused _______________________________________________________ Corrigendum of the Decision of The Decision of the Honourable Justice S.E. Pepper _______________________________________________________ The name of the offender has been changed to KP throughout the whole decision.