R v FM, 2023 ABCJ 240

In the Alberta Court of Justice Citation: R v FM, 2023 ABCJ 240 Date: 20231123 Docket: 230278970Y1 Registry: Edmonton In the Matter of: His Majesty the King Crown - and - FM Young Person Restriction on Publication Identification Ban – See the Criminal Code ,

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 By Court Order, information that could identify the victim or the witness must not be published, broadcast, or transmitted in any way.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

NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice G.B.N. Ho I. Introduction [ 1 ] FM, a young person under the Youth Criminal Justice Act , has been charged with the following offences under the Criminal Code of Canada : Count 1: On or about the 10 th day of June, 2020, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of AW, a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada . Count 2: Between the 6 th day of June, 2020, and the 20 th day of December, 2020, both dates inclusive, at or near Edmonton, Alberta, did unlawfully commit a sexual assault upon AW, contrary to

Section 271 of the Criminal Code of Canada . Count 3: Between the 6 th day of June, 2020, and the 20 th day of December, 2020, both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully invite, counsel or incite AW, a person under the age of sixteen years to touch, directly or indirectly, with a part of the body or with an object , the body of FM, contrary to

Section 152 of the Criminal Code of Canada . Count 4: Between the 6th day of June, 2020, and the 20 th day of December, 2020, both dates inclusive, at or near Edmonton, Alberta, did, without lawful authority, confine AW, contrary to Section 279(2) of the Criminal Code of Canada . Count 5: Between the 23 rd day of January, 2021, and the 20 th day of March, 2021, both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of JH, a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada . Count 6: Between the 23 rd day of January, 2021, and the 20 th day of March, 2021, both dates inclusive, at or near Edmonton, Alberta, did, unlawfully commit a sexual assault upon JH, contrary to

Section 271 of the Criminal Code of Canada . Count 7: Between the 23 rd day of January, 2021, and the 20 th day of March, 2021, both dates inclusive, at or near Edmonton, Alberta, did, in committing an assault, choke, strangle or suffocate JH, contrary to

Section 267(

C) of the Criminal Code of Canada . Count 8: Between the 23 rd day of January, 2021, and the 20 th day of March, 2021, both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully invite, counsel or incite JH, a person under the age of sixteen years to touch, directly or indirectly, with a part of the body or an object, the body of FM, contrary to

Section 152 of the Criminal Code of Canada . Count 9: Between the 23 rd day of January, 2021, and the 20 th day of March, 2021, both dates inclusive, at or near Edmonton, Alberta, did, unlawfully assault JH, contrary to

Section 266 of the Criminal Code of Canada . II. Evidence Relating to Allegations by the Complainant, AW. [ 2 ] The Complainant, AW, was interviewed at the Zebra Centre on April 13, 2021. A video recording was made of the interview and, after being adopted by AW, was entered into evidence as Exhibit 1. [ 3 ] The Complainant was 14 years old at the time of the Zebra interview and was 13 years old in June 2020. In June 2020, the Young Person was 15 years old. A. Evidence of AW [ 4 ] The Complainant, AW, met the Young Person on May 14, 2020 on Snapchat.

That’s when she considered her dating relationship with the Young Person to have begun. [ 5 ] AW and the Young Person continued their relationship on social media and through text messaging but did not meet in person until June 6, 2020. AW stated that their relationship lasted about eight months. [ 6 ] On June 6, 2020, the Complainant and the Young Person met at the townhouse of the Young Person’s father, together with the Complainant’s friend, OB and OB’s boyfriend, HR. Their plan was to sit on the Young Person’s bed, watch movies and cuddle. They watched a movie on TV together.

After 20 minutes, the Young Person and the Complainant went to the room of the Young Person’s father. The Young Person asked the Complainant to sit on him and she did. After two minutes, the Young Person and Complainant returned to the Young Person’s room. After a few minutes, the Young Person brought the Complainant back to his father’s room, where the Complainant lay on the bed next to the Young Person or on him. They then sat up. She stated that the Young Person kissed her, and asked her “Do you wanna do it now?” and “Are you in the mood?” She interpreted that to mean that he wanted to have sex.

She responded that she didn’t want to. She wanted to go back to “hang out” with OB and HR. [ 7 ] In response to the interviewer asking if there had been any prior conversations on the subject prior to that day, the Complainant replied, “there might have been one where he had talked about it and I kinda just went along with it, ‘cause like its kinda like growing up now as a teenager, its kinda like in a way pressured on you by the social media and just friend groups”. [ 8 ] They then went back to the Young Person’s room.

The Young Person brought a mattress into the room so that he and the Complainant could lay on it while watching TV. [ 9 ] The Young Person then brought the Complainant back to his father’s room. She stated that she was not able to leave the room because, when she would try to leave, he would grab her hand and say, “No, just come sit, it’s okay”. She was on his father’s bed when he began sitting on top of her on the bed. He kept asking if she wanted to do it or was in the mood for it. He got off of her and took off her pants.

She was worried that it was going to happen, whether she wanted to or not, and was scared that if anything happened, OB and HR would not be able to hear from the other room. [ 10 ] The Young Person then took his penis out and kept trying to put it inside the complainant’s vagina. He kept trying. Meanwhile, the Complainant was forcing her legs shut. She put her hands over her vagina but he pushed her hands away. The Complainant said, “I kept saying stop, like I don’t wanna do it. And just I don’t wanna be in the room and I didn’t feel comfortable and I

just remember like repeating, I don’t wanna do it, I don’t wanna do it.” The Young Person responded by continuing to say, “just let it, like just let it happen, it’s fine, like you’ll be okay, it’s fine, just let’s do it”. [ 11 ] Once the Young Person was able to move the Complainant’s arm down, and pull her legs apart, he stuck his penis inside her. He had kept telling her to open her legs and to just let it happen. She stated that when he stuck his penis inside her, she froze and it really hurt. She felt like she was going to die and it seemed like it was going on forever.

He then flipped her over and was telling her to “have sex with him now”. She felt dizzy. She pretended to pass out. She then lay back for 15-20 seconds and his penis came out of her. He was concerned that she passed out. She put on her clothes and left the room.

She said while his penis was inside her, she felt that her vagina was being ripped apart, and it just burns. [ 12 ] When asked whether there were other times, other than June 6, when something happened with the Young Person, AW stated “I think it was on the 14 th of June that I had gone back to like hang out with him ‘cause it was our 1-month anniversary and stuff” (Zebra, p. 44, lines 1310-1311).

She stated: And there had been a lot of times that I would go to his mom’s house and he would like, he begged me for a lot of stuff, like a lot of sexual stuff, and it was like, I’m pretty sure its oral sex, like is that when like it’s like mouth to their genital? (Zebra, p. 45, lines 1326- 1328). [ 13 ] She further stated: So like there was just a lot of times where I would just finally give in because I knew that would happen.

And then there were certain times where he really wouldn’t ask and he would just like take his penis out of his pants and I would be sitting up against his wall, like, like on his bed, and he would like come stand and then like put it in my mouth. And I had no choice ‘cause its not like I could really move my head because I was up against the wall. So I kinda just like would try and move him away from me. But it never really worked ‘cause he’s really strong and I just couldn't get out of it.

And there were a lot of times though where like when I would give in, I would like tell him like if I push your leg like, like kinda like smack your hand, like that means stop. And he would like yeah, yeah of course. And like there would be so many times where like there was so much spit cause like I don’t want to do it and I don’t know what to do, and it would just build up and I just couldn’t breathe because of it. And I would like start like smacking his hand or like his thigh, ‘cause, and like he would would like push my head so that it was all the way on his penis and stuff (Zebra, p. 46, lines 1354-1371).

And I remember like a lot of times that like I would finally get, like ‘cause I would feel like I was suffocating because I couldn’t breathe through my mouth and nose and it would just build up where I was finally able to push him off me. (Zebra p. 47, lines 1398-1401). [ 14 ] Based on AW’s disclosures, there were two situations when oral sex would take place, firstly where AW consented after much pleading from the Young Person, in which case the Young Person agreed to stop if given a signal to do so by AW; and secondly, where the Complainant did not consent to the sexual activity.

The Defence submits that AW’s evidence that she would not allow the Young Person to “cum” is not believable because only the Young Person knew when that was going to happen. Firstly, in situations where AW did not consent, a signal to stop would be superfluous. Secondly, I find that AW’s motivation was to stop the continuation of unwanted oral sex forced on her by the Young Person. She was eventually able to push the Young Person off and the consequence was that he did not “cum”. [ 15 ] AW’s evidence does not indicate that she was timing pushing the Young Person off when he was going to ejaculate.

She was trying to push him off during the entire sexual encounter when she did not provide her consent, and was trying to push him off, when she did consent, after she gave the signal to stop and he refused to do so. B. Evidence of OB [ 16 ] OB testified on behalf of the Crown. She was born in March 2007. OB was 16 years old when she testified and 13 years old in June 2020. Under cross-examination by the Defence, OB testified that the day before going to the Young Person’s house, she overheard a FaceTime conversation between the Young Person and AW, where AW was expressing concerns about becoming pregnant.

OB also stated under cross-examination that sometime prior to OB’s videotaped statement in June 2021, AW had told her that she didn’t remember saying yes to the Young Person. C. The Evidence of the Young Person regarding AW’s Complaint [ 17 ] The Young Person is currently 17 years old. In June 2020, he was 15 years old, and in January 2021, he was 16 years old. He stated he dated the Complainant, AW, from May 2020 to January 2021. [ 18 ] He met the Complainant, AW, on May 14, 2020 and would snapchat every day. He felt they were in a dating relationship.

The Young Person testified that before they met in person, he and AW would “break up and make up a lot” because of him “being disloyal or lying” (p. 37, lines 38-39). They met in person on June 5 or 6, 2020 on a double date with OB and HR. He stated that the night before they met in person, he had FaceTimed AW and they discussed what they were going to do when they got together. He asked for sex and she said only if he had condoms because she was afraid of getting pregnant. [ 19 ] He stated that when OB and AW arrived at the home of the Young Person’s father, HR and OB went upstairs to the Young Person’s room.

He and AW initially remained downstairs but then went upstairs to his room to join OB and HR in watching TV. HR and OB were on the bed in his room while the Young Person and AW were on a mattress. The Young Person and AW then left to take selfies in the bathroom, including pictures of hickeys in the neck area. [ 20 ] The Young Person and AW then went to the Young Person’s father’s room, where the Young Person and AW “made out”. The Young Person stated AW was on top of him. Then the Young Person was on top of her. He asked if she wanted to have sex and she said “yes”. He then left to go get a condom.

She had her clothes off. He was on top. Then she was on top. Then he was on top. The

Young Person denies that AW fainted. After sex, they went back to the room where they were cuddling. [ 21 ] He stated that oral sex with AW was just foreplay. He didn’t need to ejaculate. He denies that AW slipped out of his grip or that tapping on his thigh was a code to stop. The Young Person stated that he and AW both initiated sexual activity and denies that AW never agreed to have sex. III. Evidence Relating to Allegations by the Complainant JH. [ 22 ] The Complainant, JH, was interviewed by the Zebra Centre on April 13, 2021.

A video recording was made of the interview and, after being adopted by JH, was introduced into evidence as Exhibit 3. [ 23 ] JH was 15 years old at the time of the Zebra interview. Both JH and the Young Person were 15 years old when the events in question were alleged to have occurred. A.

Evidence of JH [ 24 ] At her April 13, 2021 interview at the Zebra Centre, JH made a number of disclosures. [ 25 ] JH met the Young Person on FaceTime with the Young Person and HD. [ 26 ] JH stated that the first time she “hung out” with the Young Person was January 23, 2021, when she snuck out of her parents’ house to go to the Young Person’s house. He kept asking her to sit on top of him, but she refused because she had a boyfriend. Every time she refused, he would get upset or angry. However, she stated that nothing happened on that occasion. [ 27 ] JH’s boyfriend broke up with her on January 24, 2021.

JH stated that on January 25, 2021 the Young Person persistently begged her to come over to his house. She finally agreed to go over after the Young Person proposed that LS and HD come over as well. Upon arriving at the Young Person’s house, at around 2:00 or 3:00pm, JH was surprised to see that LS and HD were not there. The Young Person explained that “due to COVID”, his parents only allowed him to have one guest at a time, and he would have to sneak LS and HD in later. [ 28 ] The Young Person invited JH to stay for the night.

JH was hoping that, after LS arrived, she would be able to leave and go to LS’s place. [ 29 ] JH stated (Zebra lines 1119-1120), “He would try again to get me to sit on top of him or he would sit on top of me and pin me down or choke me”. She stated, “he would like choke me, like to the point where I’d stop breathing. He would tell me to call him Grandpa. He thought it was funny, but it was like terrifying”.

She said she could feel the blood rushing to her head and that she was going to pass out (Zebra 1155-1156). [ 30 ] JH testified that every time at her friend’s house, the Young Person would choke her really hard. She would wake up and have marks on her neck. She stated that there were points when she stopped breathing and would tell him to stop, and he would “just go harder and harder”. She stated that whenever she and the Young Person were at LS’s house, JH would leave with bruises on her body somewhere. [ 31 ] LS phoned at 11:00pm to advise that she was not coming.

At that point, JH had been drinking coolers and didn’t want to call her parents to go home, so she decided to stay the night. [ 32 ] JH stated that the Young Person throughout the day asked her for “sexual activity”. She kept saying no and told him she was having her period so he would leave her alone. The Young Person responded that he didn’t care. He said he heard “that it actually makes a girl feel better when she is on her period because it subsides some of the cramps”.

She thought his reaction was disgusting. [ 33 ] He took his penis out of his pants, grabbed her hand and made her put her hand on it. [ 34 ] Later, when she asked for another cooler, he gave her a glass of straight whiskey “50% alcohol”. [ 35 ] She drank it and may have asked for more. He brought her another glass of straight whiskey, which he said was 60% or 65% alcohol. [ 36 ] She said he kept asking and she finally said “whatever”.

She stated that “in a way she did say yes, but it was while she was drunk, after having said no a million times sober. [ 37 ] JH stated that the last time she saw the Young Person was at her house. SL and LS were there as well. [ 38 ] JH stated that the Young Person choked her on that occasion. She kept telling the Young Person to go home, but he said his mother would not allow him to come home until 7:00, because she was sleeping. [ 39 ] She stated that she, LS, SL and the Young Person were laying on the bed in her bedroom when the Young Person was touching her in places she didn’t want to be touched.

She kept saying the Young Person’s name, coupled with “no” or “stop”. B. Evidence of LS [ 40 ] LS was 18 years old at the time of the trial. In January, 2021, she was 16 years old.

[ 41 ] LS testified that she saw the Young Person choke JH in JH’s basement. She testified that there were different instances of the Young Person choking JH and placing her in a headlock. JH and the Young Person were on a couch when the Young Person wrapped his arm around JH’s neck for “a minute or so”. LS ended the incident by kicking the Young Person and pulling JH away. [ 42 ] LS did not witness anything else between the Young Person and JH. [ 43 ] LS testified that she received a FaceTime all from the Young Person one morning, waking her up.

He turned the camera on JH who was asleep, and the Young Person stated that they had slept together. LS was supposed to go to the Young Person’s house the evening before but cancelled because she was too tired. C. Evidence of HD [ 44 ] HD was 18 years old at the time of trial. In January, 2021, he was 16 years old. He went to elementary and junior high school with the Young Person and knew him for approximately ten (10) years. In 2021, the Young Person was his best friend. He and JH were friends in 2021.

He testified that he never saw anything happen between the Young Person and JH. [ 45 ] On January 25, 2021, the Young Person FaceTimed HD. JH was at the Young Person’s place and HD was supposed to join them. When HD attended at the Young Person’s house, he was caught by the security camera before the Young Person could turn it off.

Concerned that his father would be upset, the Young Person told HD to leave. [ 46 ] On cross-examination, HD acknowledged that on January 25, 2021, the Young Person FaceTimed HD and that JH came up behind the Young Person and said, “Let’s have sex”. [ 47 ] HD stated that in 2021, he and the Young Person were best friends (p. 12, lines 6-7). Under cross-examination by the Defence as to whether he ended his relationship with the Young Person because of the allegations against the Young Person, HD acknowledged that it was “A little bit of that and because he – I drove him places and he gave me fake money - ” D.

Evidence of SL [ 48 ] SL was 18 at the time of the trial, and 15 or 16 in January, 2021. [ 49 ] She was “hanging out” one night at JH’s house with JH, LS and the Young Person. She was on the edge of the bed, and subsequently joined by LS, who was on the edge of the other side of the bed, JH and the Young Person. The Young Person was on top of JH and JH repeatedly stated the Young Person’s name, followed by “get off” or “stop”. SL acknowledged that she had her back to them and did not see anything. E.

Evidence of Young Person Regarding Allegations by JH [ 50 ] The Young Person was 17 years old at the time of the trial and was 15 years old in March, 2020 and 16 in January, 2021. [ 51 ] The Young Person stated that he had a FaceTime call with JH the night before she came over to his house. [ 52 ] He stated that when they got together, he asked her if she wanted to have sex and she replied that she had a boyfriend. He denied asking her more than once for sex. [ 53 ] JH came over to the Young Person’s house again 2 days later on January 25. JH had told him she broke up with her boyfriend the night before.

HD and LS were supposed to come over as well. He had asked them to text him first before they came over so he could turn off the camera for the house. When HD was caught on camera sometime after 10:00 pm, the Young Person did not allow him to come in. LS did not come because she had to study. She phoned around 11:00 pm to say she wasn’t coming. [ 54 ] He stated that JH asked for an alcoholic drink so he gave her a cooler.

When she asked for another drink, he gave her a mix of vodka and pineapple juice. [ 55 ] He denied taking out his penis and putting her hands on it. [ 56 ] He stated that JH pulled down his pants, and said, “I’m going to suck your dick”. She then started to do so and he was fine with it. He stated that before JH pulled down his pants, he had FaceTimed HD, and JH said on FaceTime video, “Let’s have sex”. He stated that, after JH gave him oral sex, she got on top of him and they had sex. [ 57 ] He referred to an incident at LS’s house, attended by JH, the Young Person, HD and LS.

He stated he was “in the motion of choking” JH, but he never choked her. He stated, “I never, like, put my full force or any pressure on her neck to, like, make her feel any type of asphyxiation or anything like that”. He said he had her phone and was telling her to call him “grandpa” before giving her phone back. [ 58 ] The Young Person referred to the incident at JH’s house, attended by JH, the Young Person, SL and LS. He said they were in JH’s upstairs room. SL was on the inner part of the bed. LS was on the other side. JH was in the middle. The Young Person was lying by their feet.

He said the noise was JH reacting to him kicking her. The Young Person denied touching JH inappropriately. IV. W(D)

[ 59 ] Since the Young Person testified, I am required by the Supreme Court of Canada decision in W(

D) to apply the W(

D) instruction. [ 60 ] In R v Ryon 2019 ABCA 36 at para 51 , the Alberta Court of Appeal re-framed the W(

D) instruction, which in the case of a judge alone trial, would be as follows: 1. The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to the caveat that this does not apply to defences, such as that found in s.16 of the Criminal Code , where the onus rests with the proponent of the defence). 2.

If the trier of fact believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such as an objective component). 3. While the trier of fact should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring a decision on which conflicting version is true. The trier of fact must acquit if unable to decide whom to believe. 4.

If the trier of fact completely rejects the accused’s evidence as other exculpatory evidence, the evidence that is believed must be carefully assessed to determine if it raises a reasonable doubt. V. Collusion, Recent Fabrication [ 61 ] The Young Person was charged with the offences alleged to have taken place involving AW and JH on a joint information.

The Defence, in its submissions, stated that the Defence was not opposed to a joint information, in order to support the Defence claim of collusion. [ 62 ] The Defence relied on the decision of the Supreme Court of Canada in R v Shearing , 2002 SCC 58 , to support the Defence claim that all that’s necessary for a reasonable doubt is an opportunity to collude. In my view, that’s an incorrect view of Shearing . Shearing is a leading case on similar fact evidence and dealt with the admissibility of certain similar fact evidence proposed by the Crown to establish a double inference.

The Crown is not seeking to admit similar fact evidence in the present case and the Defence acknowledges this. Furthermore, the Supreme Court stated that if there was an opportunity to collude, but nothing sufficiently persuasive to trigger the Judge’s gatekeeping role, it was for the jury to determine “whether the evidence was reliable despite the opportunity for collaboration” ( Shearing at para 44 ). [ 63 ] The potential for collusion was considered by the Supreme Court of Canada in Shearing , in the context of addressing the factors to be considered in the admissibility of similar fact evidence.

One of those factors considered was the strength of the evidence, including the potential for collusion. The Supreme Court stated, at paras 40-44: 40 The theory of similar fact evidence turns largely on the improbability of coincidence.

Collusion, by offering an alternative explanation for the "coincidence" of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for its admissibility. 41 In Handy, we held that where there is an air of reality to the allegation of collusion, the trial judge, in assessing the admissibility of the similar fact evidence, must be satisfied on a balance of probabilities that the evidence is not the product of concoction.

This is inherent in deciding whether, as a matter of law, the evidence has sufficient probative value to overcome the prejudice. 42 If this threshold test is passed, the jury must determine for itself what weight, if any, to assign to the similar fact evidence. 43 There was evidence of some communication among the complainants. With respect to the G sisters, this was almost inevitable. They had also kept in touch with JV. Other complainants were in touch with each other prior to trial. Civil proceedings had been commenced by the G sisters for compensation and to close down the Kabalarians.

KWG expressed the hope that the appellant would "rot in Hell". 44 The evidence here is far more speculative than in Handy . In that case, there was consultation between the complainant and the similar fact witness prior to the alleged offence about the prospect of financial profit. Here, there is some evidence of opportunity for collusion or collaboration and motive, but nothing sufficiently persuasive to trigger the trial judge's gatekeeper function. There is no reason here to interfere with the trial judge's decision to let the collusion issue go to the jury.

He instructed the jury to consider "all of the circumstances which affect the reliability of that evidence including the possibility of collusion or collaboration between the complainants". He defined collusion as the possibility that the complainants, in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing.

It was for the jury to make the ultimate determination whether the evidence was "reliable despite the opportunity for collaboration" or that "less weight or no weight should be given to evidence which may have been influenced by the sharing of information". [ 64 ] The Defence refers to both AW and JH making their complaints on the same day and the various social media posts made by various persons denigrating the Young Person. [ 65 ] I take judicial notice of the fact that, historically, victims of sexual assault were often reluctant to come forward.

Changes in the law have been enacted by Parliament and through the courts to encourage victims to come forward. It is not collusion to urge victims to file complaints about what happened to them. It is not collusion for two victims to file their complaints on the same day. Both AW and

JH were urged to come forward with their complaints. It is not out of the question that they would file their complaints at around the same time. [ 66 ] It is not collusion for people to express their outrage about what happened to AW and JH. The Complainants were urged to come forward with their complaints to the proper authorities. Urging someone to report a crime is not the same as urging them to modify their evidence. Social media, in this case, did not generate the facts that were the subject matter of the complaints, but merely reacted to their disclosure.

Reporting a complaint in such circumstances is not collusion. [ 67 ] The Supreme Court cited and did not take issue with the definition of collusion given by the trial judge in Shearing : He defined collusion as the possibility that the complainants in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing. [ 68 ] OB testified how AW disclosed to her what happened.

This disclosure is not admitted for the truth of its contents, but to rebut claims of recent fabrication: I believe it was a year after though, it happened. We were talking about how I went through a situation where I was sexually assaulted, and I don’t remember how really the conversation got brought up. I think this was one of the first times I was telling A that it happened to me because I needed to tell someone, and then she was telling me what used to happen with (the Young Person) and how she never liked it, and I stopped, and I looked at her, and I said A, that is rape. You did not give consent.

You told him no. You never said yes, and that is when she realized that she got raped. [ 69 ] When the Crown asked OB how the incident got reported, OB replied (p. 8, lines 32-38): I remember A FaceTiming me that she needed to tell her mom. She could not keep it from her anymore. So I told her I would stay on FaceTime with her, and I loved her very much, and I’m very proud of her speaking up. So she walked downstairs, and she said on – before she walked into the living room, she told me, (OB), I don’t know if I can tell her. Can you please do it for me? And I said, yes.

So She walked out to the living room on FaceTime with me, handed the phone to her mom and I told her mom what happened. [ 70 ] On cross-examination of JH, Defence counsel read the following, which purported to be an excerpt from the Zebra interview of JH: And then that’s what – when I started talking to the girls about it and told them like a little bit about what happened to me, and they were just like, Yeah, no that’s right. Like if you can, you should come forward because there’s some of us who can’t or won’t. And we just – we want to put him away, you know. Like all of us do. I don’t know any of these girls.

I’m still friends with – I’m still not friends with them now. We talked a little bit. We had a group chat on Snapchat for a little while . (April 4, 2023, p. 38, lines 13-21). (underlining is mine) [ 71 ] Defence counsel read the extract to suggest she participated in a group chat. However, the portion read in was misleading. The transcript of JH’s interview at Zebra states at p. 22, line 649 to p. 23, line 659: …that’s when I started talking to the girls about it and told them a little bit about what happened to me and they were just, like yeah, no, that’s rape.

Like if you can, you should come forward because there’s some of us who can’t or won’t… Um and we just, we want him put away, you know, like all of us do. I don’t know any of these girls. I’m still not friends with them now. We talked a little bit. Ah we had a group chat on Snapchat for a little while there but I never talked in it so I just left .

Um, I think there’s like two girls on the, from the group chat that I have on Snapchat but I don’t talk to them . (underlining is mine) [ 72 ] The extract read by Defence Counsel on cross-examination clearly confused JH as she continued to insist that she saw snapchat posts but never participated in them. The excerpt from the transcript of JH’s Zebra interview makes it clear that she was being truthful. [ 73 ] I find that in the present case: (

a) The Complainants, AW and JH, did not share their stories with each other, and (

b) The Complainants did not change or modify their stories, intentionally or accidentally, so that their testimony would seem more similar or more convincing. [ 74 ] I find the Defence allegations of collusion to be purely speculative and without merit. VI. Credibility [ 75 ] In the context of the evidence as a whole, I do not believe the Young Person’s evidence and it does not raise a reasonable doubt. [ 76 ] I found the evidence of AW to be compelling, and her descriptions of what happened to her and her feelings about what happened striking.

She acknowledged that she and the Young Person cuddled, were in a dating relationship and that, prior to June 6, she might have succumbed to social pressure and agreed to have sex. I agree with the Crown’s submission that AW was consistent with her video-taped statement and her in-court testimony insofar as it related to what happened to her. She was particularly consistent that she did

not want to have sex with the Young Person at the time the sexual activity occurred. [77] JH’s testimony was also compelling, particularly in displaying a concerted effort to tell the truth, including her efforts to repelthe Young Person’s advances by telling him she was having her period. JH was frank in acknowledging that, with some exasperationafter much pleading from the Young Person, she consented to sexual intercourse. She testified that nothing happened when they gottogether on January 23.

She also acknowledged that “everyone” hated her and that she was a very mean person. [78] There are inconsistencies in the evidence of AW and JH, but they relate to collateral or inconsequential matters.

Despite errorsin the testimony of the Complainants, there remained a body of credible evidence capable of proving the offences beyond a reasonabledoubt. [79] In R v B(G) (SCC), [1990] 2 SCR 30 at para 48, Wilson J. stated: 48 Dealing first with Wakeling J.A.'s comments regarding the credibility of child witnesses it seems to me that he was simplysuggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not imposethe same exacting standard on [page55] them as it does on adults.

However, this is not to say that the courts should not carefully assessthe credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealingwith children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimonyshould not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his commentsentirely appropriate.

While children may not be able to recount precise details and communicate the when and where of an event withexactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted amuch more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this isa desirable development.

The credibility of every witness who testifies before the courts must, of course, be carefully assessed but thestandard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. [80] In his excellent review of the law regarding inconsistent evidence of children, Justice Michalyshyn in R v H(DA) 2017 ABQB193 referred to the Alberta Court of Appeal decision in R v J(CL) 2011 ABCA 176 at para 47, which addressed inconsistencies in thestatements of a child witness: 47 The child made another inconsistent remark in the trial and the preliminary inquiry with regard to whether her underwear was upor down.

She was, however, consistent throughout with regard to the nature of the assault as well as to the identification of theperpetrator.

The Court of Appeal unanimously holds that the trial judge did not err in finding the witness to be credible, despite theinconsistencies in her statements, and upholds the convictions. [81] The videotaped evidence of both AW and JH were introduced into evidence pursuant to s.715.1 of the Criminal Code, whichapplies to witnesses under the age of 18 years. [82] The Supreme Court of Canada, in R v L (DO), (SCC), [1993] 4 SCR 419, addressed the purposes of s.715.1,noting at paras 35 and 40: 35 I agree with the submission that the goals of s.715.1 are not unique but multifaceted. First, I find that the

section is designed topreserve an early account of the child's complaint in order to assist in the discovery of the truth and to provide a procedure for theintroduction of the child's story into evidence at the trial. R. G.

Mosley, senior general counsel for the Department of Justice, said whenintroducing s. 715.1 before the Standing Senate Committee on Legal and Constitutional Affairs that: ... the videotape ... is simply a means of getting the child's earlier statement before the court in the belief that that early statement will bean accurate and, hopefully, more complete account of what took place. (Standing Senate Committee on Legal and Constitutional Affairs, Proceedings, Issue No. 2, November 20, 1986, at p. 2:23.)… 40 A further advantage afforded by s.715.1 is the opportunity for the child to answer delicate questions about the abuse in a morecontrolled, less stressful and less hostile environment, a factor which, according to social science research, may drastically increase thelikelihood of eliciting the truth about the events at hand.

Scientific study has indicated that, as compared to the courtroom setting, thequality and reliability of children's testimony is significantly enhanced in a smaller, more intimate, videotape environment (Spencer andFlin, supra). The numerous other advantages of videotaped evidence include the fact that videotaped testimony enables the court to heara more accurate account of what the child was saying about the incident at the time it first came to light. Secondly, the tape of an earlyinterview will reveal how the child was questioned.

Thirdly, a suspect may have the opportunity to view the videotape during the courseof an investigation. Fourthly, the videotape of an early interview, if used in evidence, can supplement the evidence of a child who isinarticulate or forgetful at trial. [83] These quotes recognize that an early account of the child’s testimony in a less intimidating environment will assist in thediscovery of the truth, and likely to provide the most accurate account of what happened. There is further recognition that children maybe forgetful, or not be able to articulate with precision at trial.

These considerations form the underlying basis for the caselawrecognizing that collateral or inconsequential inconsistencies may be anticipated in the evidence of children at trial and should not betreated the same as the evidence of adults. VII. Findings of Fact [84] I accept the testimony of AW that on June 6, 2020, the Young Person forcibly engaged in sexual intercourse with her withouther consent. I do not accept the Young Person’s testimony that AW consented, and his testimony does not leave me with a reasonabledoubt. I find that AW did not subjectively consent to sexual activity.

I note that, even if AW agreed the day before they met in person tohave sex if the Young Person brought condoms, such a consent would not meet the requirement set by the Supreme Court of Canada in R

v Ewanchuk 1999 SCC 711 at para 26 that any consent be contemporaneous with the sexual activity. [ 85 ] I accept the testimony of AW that on at least one occasion between June 6, 2020 and December 20, 2020 and specifically, on June 14, 2020, the Young Person invited AW to have oral sex and, when she did not consent, forced her to have oral sex with him by forcing his penis into her mouth. [ 86 ] The Crown has not established beyond a reasonable doubt Count 1 (touching AW for a sexual purpose on June 10, 2020) or Count 4 (unlawful confinement of AW). [ 87 ] Based on JH’s evidence that she consented to sexual intercourse with the Young Person, even though reluctantly, I find that the act of sexual intercourse by the Young Person with JH was not a sexual assault.

Although JH was under the influence of alcohol, her consent was valid, based on the criteria set by the Supreme Court of Canada in R v GF , 2021 SCC 20 at para 57 .

JH understood the physical act, that the act was sexual in nature, the identity of her partner, and that she had a choice not to participate in the sexual activity. [ 88 ] I further find that JH did not consent to the Young Person taking out his penis and grabbing her hand and making her put her hand on it. [ 89 ] Based on the evidence as a whole, the Crown has not established beyond a reasonable doubt that the Young Person sexually touched or sexually assaulted JH while they were laying on the bed with LS and SL. [ 90 ] Both JH and LS testified that the Young Person choked JH on a number of occasions.

JH referred to the choking affecting her breathing. LS testified that the choking lasted “a minute or so”. I am satisfied beyond a reasonable doubt that the choking by the Young Person created a significant restriction on JH’s ability to breathe. I reject the suggestion that the Young Person’s actions were excusable as a prank, and that the Young Person put his hands on JH’s neck without applying pressure. VIII. Conclusions [ 91 ] Subject to any Kineapple applications for a stay, I find the Young Person guilty beyond a reasonable doubt on the following counts: 1. Count 2 – sexual assault on AW; 2.

Count 3 – sexual invitation of AW; 3. Count 5 – sexual touching of JH; 4. Count 6 – sexual assault of JH; 5. Count 7 – choking of JH; 6. Count 8 – sexual invitation of JH; 7. Count 9 – assault of JH. [ 92 ] I find the Young Person not guilty on Counts 1 and 4. Dated at the City of Edmonton, Alberta this 23 rd day of November, 2023. G.B.N. Ho A Justice of the Alberta Court of Justice Appearances:

K. Barker for the Crown K. McGowan for the Defendant