R v LWT, 2023 ABCJ 139

In the Alberta Court of Justice Citation: R v LWT, 2023 ABCJ 139 Date: 20230612 Docket: 221039126Y1 Registry: Calgary Between: His Majesty the King Crown - and - LWT Accused Restriction on Publication Identification Ban – See the Criminal Code ,

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 By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way.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

Decision of the Honourable Justice J. Shriar [ 1 ] The Accused LWT is charged with sexually assaulting his sister ET over several months when the Accused was around 12 years old and the complainant around 8. LWT is now 19, and ET 15. [ 2 ] Crown called evidence from the complainant who described five incidents of sexual contact including anal and oral sex, and digital penetration. Four of the five incidents allegedly occurred in the parties’ family home and the fifth, a few months later, in their grandmother’s house nearby. [ 3 ] A preliminary issue arose about the dates of the alleged offense.

The one-count information states the offense occurred

between June 1, 2017, and August 31, 2017. Counsel agree that based on the evidence, the allegations concern conduct that would haveoccurred from approximately June 1, 2016, through approximately December 24, 2016. And that there has been no prejudice to Defencearising from the misstatement because the substance and details of the allegations were disclosed to Defense well before trial. [4] Section 601(2)(

a) of the Criminal Code seems applicable and authorizes the Court, even on its own motion, to amend anindictment, the definition of which includes an “information”, where the evidence at trial varies from the wording in the chargingdocument. [5] Having considered the factors referred to in subsection 601(4), and pursuant to subsection 601(2) the Court directs theinformation be amended to reflect those dates. [6] Specifically, the information is amended to delete the words starting with “Between the 1st day of June...” through the words“...both dates inclusive”, and to substitute the words, “Between approximately June 1, 2016, and approximately December 24, 2016...”.

The rest of the wording remains unchanged. The Burden of Proof [7] The Accused enjoys the benefit of the presumption of innocence, the hallmark principle of the Canadian criminal justicesystem. He has no duty to prove his innocence. The burden rests on the Crown to prove the charge beyond a reasonable doubt.

Nevertheless, having testified at the trial, LWT put his credibility in issue. [8] The credibility of a witness relates to both the honesty and the accuracy of their testimony and is assessed based on manyfactors including their opportunity and ability to perceive, to recall, and to communicate and any circumstances which might cause anindividual to choose to offer false or misleading information including whether the witness has an interest in the outcome of theproceedings. [9] The Court is entitled to apply common sense and human experience in determining whether evidence is credible and reliableand in deciding what use, if any, to make of it in coming to its conclusion.

The Court may believe the whole or part of the testimony ofany witness. [10] Applying the principle about proof beyond reasonable doubt to the issue of credibility was addressed by the Supreme Court ofCanada decision R v W(D), (SCC), [1991] 1 SCR 742. At pp.757-58 Justice Cory stated three fundamental principlesalmost always applied by Canadian courts and juries when assessing credibility of witnesses in the context of the rule of reasonabledoubt. [11] First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony ofthe accused, but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of theaccused, you must ask yourself whether, based on the evidence which you do accept, you are convinced beyond a reasonable doubt bythat evidence of the guilt of the accused. [12] The purpose of the W(

D) approach is to ensure the burden never shifts from the Crown to prove every element of the offencebeyond a reasonable doubt. The burden to prove the accused’s guilt beyond a reasonable doubt remains on the Crown and the accused isnever required to prove his innocence or disprove any of the Crown’s evidence. [13] Proof beyond a reasonable doubt is not proof to the level of certitude. Many scientific matters cannot be proven with absolutecertainty, let alone matters concerning human affairs. Reasonable doubt is not based on sympathy or prejudice, nor on imaginary orfrivolous doubt.

Reasonable doubt must be based on reason and common sense and must be logically connected to the evidence orabsence of evidence. (R v Lifchus, (SCC), [1997] 3 SCR 320) [14] Proof beyond a reasonable doubt, however, is closer to the level of absolute certainty than to the level of probability. More isrequired than proof that the Accused is probably guilty.

If the Court concludes only that the Accused is probably guilty, it must acquit.(R v Starr, (2000) 2000 SCC 40 , 147 CCC (3d) 449, (SCC) at para. 242) The Accused’s Evidence [15] In his testimony, the Accused LWT, denied any sexual contact with his sister ever. [16] Defense counsel referred to the case of R v Garford, 2021 ABCA 338 regarding so-called “bare denial” cases where the Courtof Appeal cautioned trial judges about erroneously conflating a bare denial of any criminal activity with a reason to disbelieve the

Accused. Or somehow characterizing the denial as self-serving without explaining why. [17] A flat denial of any criminal conduct against the complainant is what an accused person would proffer if they were whollyinnocent. It does not follow however, that a bare denial of culpability automatically entitles an accused person to an acquittal either. Ultimately the denial must be carefully assessed in the context of all the evidence admitted at trial. [18] In R v Rana, 2010 ABPC 158 (para. 15), Judge LG Anderson stated that it is impossible to assess the veracity of a bare denialtype defense without more context.

And if the only context is the complainant’s testimony, then the assessment proceeds similar toconsideration under the third leg of W(D). Namely whether all the evidence including the denial and the complainant’s testimony leavesa reasonable doubt. [19] Crown submits LWT’s testimony was not a “bare denial”. In his evidence the Accused put up “roadblocks”, supposedlyshowing that he never had the opportunity to commit the acts alleged, because he and his sister were never out of the sight of a parent orgrandparent for long enough.

Crown argues this is so unlikely as to undermine the Accused’s credibility. [20] Crown also noted the Accused changed his testimony about whether he had a television in his bedroom at the material time,relating to the complainant’s testimony that at least two incidents occurred in connection with playing video games on a televisionscreen. [21] The Court also identified these so called “roadblocks”, and while not wholly credible also seem consistent with an innocentperson attempting to “prove” his innocence, which of course is not his burden. [22] In Rana Judge Anderson observed that where the main other evidence is the complainant’s testimony, the strength of thatevidence necessarily becomes a significant consideration in assessing the credibility of the denial.

The Complainant’s Evidence [23] Defense counsel pointed out frailties in the complainant’s testimony, including the lack of memory of significant details aboutwhat happened before and after the alleged incidents, which she argued undermine the reliability and credibility of ET’s testimony. [24] Crown submitted that ET testified in a forthright manner without embellishment or exaggeration, admitting to gaps in hermemory but reasonably asserting that while her recall of certain details was “fuzzy”, she clearly remembered important events from therelevant times. [25] Given the time lapse since the alleged events and the young age of the complainant at the time, these memory gaps are notnecessarily material. (R v W(R), (SCC), [1992] 2 SCR 122 (SCC)) [26] There are, however, other features of ET’s testimony that concern the Court.

And these relate to what the Court described as alack of context. ET testified that she was scared and confused at the time and did not understand this was abnormal. [27] I wondered aloud about when and how that changed, and what led ET to make the allegations. In discussion during argumentCounsel averted to the risk of falling into reasoning based on stereotypes or myths. [28] In R v Garford (paras. 19-20), the Court of Appeal reminded that relying on “logic and common sense” about how memoryfunctions or how victims of sexual assault behave, may lead to improper reliance on myth and stereotypes.

And that there are, of course,many reasons for delay in reporting including embarrassment, fear, guilt, lack of understanding and knowledge and recovery of repressedor buried memories. (R v D(D), 2000 SCC 43 , [2000] 2 SCR 275) [29] Myths and stereotypical thinking about sexual assault victims including children and young people have no place in a rationaland just legal system and reliance of myths and stereotypes to assess the credibility of a complainant undermines the court’s truth findingfunction. (R v Lacombe, 2019 OJ 6022).

I reviewed several cases making similar points and carefully instructed myself to avoid thaterror (R v AG, 2000 SCC 17; R v ARD, 2017 ABCA 237) [30] The Court disagrees that its concern is based on myths and stereotypes. The concern does not arise from an unmet expectationof any particular behaviour or response by the complainant.

Rather this sort of detail would be helpful and perhaps necessary in assessingthe reliability of the complainant’s testimony, given the time lapse since the alleged events, her young age at the time and her candidadmission about not remembering certain related details. [31] In the absence of evidence about contextual circumstances, the complainant’s allegations, in this case at least, are the flip sideof a bare denial. They are like “bare allegations”. The solution to the problem of possible improper judicial reliance on myths andstereotypes surely cannot be to avoid any evidence of context.

Avoidance risks creating the reverse of a bare denial, leaving near-bareallegations and an insufficient basis on which to undertake assessment of the veracity and especially the reliability of the complainant’stestimony. [32] In Garford, the Court of Appeal warned against myths and stereotypical conclusions about the complainant’s delayed andincremental allegations. The Court also stated (para. 21) that “this is not to say that such evidence is necessarily inadmissible orirrelevant”. And that such evidence generally “can and should be probed during cross examination.

Such considerations are part of theoverall assessment of the complainant’s credibility”. [33] A similar point was made in R v Roth, 2020 BCCA 240 where the BC Court of Appeal held that notwithstanding the risks ofmyths and stereotypes distorting a judge’s reasoning process, consideration of a complainant’s behaviour is not prohibited for allanalytical purposes. Rather such evidence has a permissible role to play as a circumstance in assessing the evidence as a whole, in thecontext of the case’s particular “factual mosaic”.

The Court stated that “what ARD and like cases warn against in the improper use of thistype of evidence, not any use at all.” (para 130).

[34] In R v Greif, 2021 BCCA 187, the Court stated that “what matters is not the type of evidence but the inference it is beingrelied upon to support.” (paras. 62 and 64). The Saskatchewan Court of Appeal made a similar point in R v Durocher, 2019 SKCA 97 Conclusion [35] To secure conviction the Crown must prove all elements of the offense beyond a reasonable doubt. That is a very highstandard of proof. [36] Where different versions of the events are presented in court, a decision is never a matter determining which version the courtprefers.

To follow that approach would mean that the Accused would have the onus of proving his innocence by presenting a morebelievable version of events. That is, of course, not the Accused’s obligation. A trial is not a credibility contest between theComplainant and the Accused over who provides the best or more likely narrative of events. [37] The trial judge may prefer the Complainant’s narrative to that offered by the accused, but that does not resolve the issue ofreasonable doubt as to guilt. A preference alone is not sufficient to find guilt.

The issue is always whether the Crown has proven thecase beyond a reasonable doubt. (R v JHS, 2008 SCC 30 at paras. 8-13; R v CYL, 2008 SCC 2 , 2008 SCJ No 2, para. 6) [38] LWT’s testimony that there never would have been opportunity to commit the alleged acts is unconvincing. And the baredenial of any criminal conduct cannot be meaningfully considered except in the context of assessing ET’s testimony. [39] I agree that ET testified in forthright manner and apparently did her best to recall and recount events that occurred severalyears ago.

As indicated, her lack of recall of certain background facts does not raise concerns for the Court about her credibility. Theabsence of detailed evidence of historical child sexual assault allegations is often understandable. [40] However more evidence about the context of the allegations themselves would help the Court assess the reliability of thoseallegations. [41] It should be emphasized for the benefit of ET that she is not being accused of lying or misrepresenting the facts. She is notaccused of any crime or wrongdoing.

She is at not at risk of criminal conviction. [42] The Crown is required to prove the case beyond a reasonable doubt. That is a very high burden. And in the absence ofevidence to assure the court of the reliability of the Complainant’s testimony, the Court finds that there is simply not enough evidence toconclude beyond a reasonable doubt that the incidents occurred as described. [43] After careful consideration of all the evidence the Court is not convinced the Crown has proven the case to the required highstandard. Accordingly, there must be a finding of ‘not guilty’.

The case is dismissed, and the Accused is free to go. Heard on the 12th day of June, 2023. Dated at the City of Calgary, Alberta this 19th day of June, 2023. J. Shriar A Justice of the Alberta Court of Justice Appearances: Mr. P. Bigg for the Crown Ms. H. Volk for the Accused