2022 NBPC 11, 2022 NBPC 11

2022NBPC11 Provincial Court Province of New Brunswick Date: January 13, 2022 Docket: 03283206 Her Majesty, The Queen - and - A.L. Decision of Judge Cameron Gunn of the Provincial Court of New Brunswick Appearances: Patricia Henheffer for Her Majesty the Queen Patrick Hurley,Q.C.and Sabrina Winters for A.L. RESTRICTION ON PUBLICATION This matter is subject to a Publication Ban. Information contained herein is prohibited from publication pursuant to

Section 486.4 of the Criminal Code of Canada . Note: This document is subject to editorial revision before its reproduction in final form Introduction 1 . In the summer of 2018 A.L. and J.S. met in person for the first time. Both agree that they had been in contact via Snapchat for some significant period of time before their in-person meeting. At the time A.L. was 24 and J.S. was 15. 2 . Over the course of several days in August and September of that year J.S. says that there were two incidents of sexual intercourse between she and Mr. A.L. . Mr.

A.L. claims the most significant physical contact between the pair would have been a handshake. 3 . As a result of the allegations later made by J.S., A.L. was charged with committing a sexual assault on J.S., contrary to s. 271 (

a) of the Criminal Code of Canada . Mr. A.L. has denied the allegation, elected the jurisdiction of this court and pleaded not guilty. This case is about whether the Crown has proven the guilt of Mr. A.L. beyond a reasonable doubt.

The Evidence The Crown 4 . J.S.is the complainant in this matter and was the first witness who testified for the Crown. She testified that she is currently 18 years old having been born on August 8, 2003. She is currently a freshman in college, lives in Oshkosh, Wisconsin and holds down a job as well. 5 . She moved to Wisconsin when she was 13 having previously lived in Toronto and at her paternal grandparents’ residence in Nova Scotia.

Her mother eventually left that residence and moved to Wisconsin, leaving her in the care of her grandparents until her father, R.S. . was released from prison and returned to live with her and her grandparents in Nova Scotia. 6 . She indicated that she has three older siblings, B.S.1, B.S.2 and J.S.. They range in age currently from 27 to 21. 7 . She described the atmosphere at her grandparents’ house as toxic, in part due to her grandmother’s alcoholism and eventually she went to live with her mother in Wisconsin. 8 .

Prior to the events described leading to the charge before the court she described her struggles with mental illness including anorexia, bulimia, depression and anxiety. She indicated that she has attempted suicide twice and was in a particularly vulnerable position in the summer of 2018. 9 . During that summer she visited, first her father in Toronto, and then her sister in New Brunswick, arriving on July 30 th , 2018. She left and went to Nova Scotia between August 18 th and August 27 th before returning to her sister B.S.1’s in Oromocto, New Brunswick.

At the time her sister was living with a man named P.K. in a PMQ. In addition to a general visit she was there to attend the wedding of her other sister B.S.2 scheduled for September 1 st , 2018. 10 . Before arrival in New Brunswick during the winter months of 2018 she began a Snapchat exchange with the accused, A.L. . She testified that P.K. had given her his contact information but that it was A.L. who first contacted her.At the time that they started to exchange messages via Snapchat she was a freshman in high school in the ninth grade and was 14. 11 .

She indicated that Snapchat is a social media platform through which contacts can exchange written messages, videos or photographs. Messages sent via Snapchat, according to her, are almost immediately deleted unless the recipient chooses to screenshot a particular message, photo or video. She indicated that when this happens the sender receives notification that screenshot has been taken. During the course of her conversations with A.L. she indicates that she received at least one such message. 12 . Her exchanges with Mr.

A.L. started with casual conversation about working out but progressed to her being open with him about her struggles and her family environment. They also talked about school and about him being in the military. Eventually the messages became sexual in nature. At the time she did not know his exact age but thought he must have been 22 or 23 based upon his relationship with P.K. and the fact that he was in the military. She was certain that she mentioned that she was in the ninth grade in high school and that he knew she was B.S.1’s little sister. 13 .

She recalled the first time that the exchanges between the pair took on a sexual tone. She had been having a bath and indicated to him she was going to have a steak dinner to which he replied, “I have a steak for you.” She took this to mean he was referring to his penis and she assumed she responded back in a sexual manner. 14 . She indicated that the messages between them became more sexual in nature and they started to send pictures of themselves. She said that he sent her a picture of his penis and she would have sent him nude pictures as well.

They discussed her upcoming visit to New Brunswick, and they decided they would have sex when she visited. 15 . Eventually, as indicated above, she testified that she arrived in New Brunswick though she had no contact with Mr. A.L. between July 30 th and August 26 th . She said that her first encounter with him was at a pool at his grandparents’ house on her return to New Brunswick after the 27 th . There was no physical contact between them at the time though she indicated that he looked her up and down when she was in her bikini. 16 .

The first of what she would ultimately describe as two sexual encounters between she and A.L. occurred on August 29 th , 2018. She testified that she, P.K., B.S.1 and some others were hanging out at B.S.1’s house. A.L. was one of the people at the residence but at some point, during the evening he said his goodbyes and left. He then sent a message on Snapchat that he was in the parking lot and suggested she come out if she wanted to have sex. She told P.K. of her intention to do so and asked him to tell B.S.1 she was going for a walk. 17 . Mr. A.L. was sitting in she described as an SUV and being nice.

She sat in the passenger seat and described the vehicle as clean inside. They started kissing and he said, “I’ve been wanting to do that for a very long time”. 18 . After this they drove to another location approximately 5 to 10 minutes away to an area that she described as secluded. They began kissing again and eventually she transferred to the back seat by climbing over the seats. He also went into the backseat, but she was unsure how he did so. She indicated that he had brought several condoms and offered her choice of which he might use. 19 .

In the backseat she indicated she performed oral sex on him to which he commented that “No one had been able to get it all the way in” “or “no one was get it that deep before”. This lasted for 2 or 3 minutes before they progressed to vaginal intercourse. 20 . She indicated that this began with her straddling him with her facing the trunk and him facing the front. There were, according to her, other sexual positions though she did not remember what they were, and the entire episode took approximately one hour. He was wearing a condom and did ejaculate during intercourse

21 . The conversation after was about the sex having been good though, in fact, she found it painful. He returned her to the residence of her sister, dropping her off some distance from the residence. She said that B.S.1 and P.K. were in the residence asleep and that she took a shower and went to bed 22 . She indicated that she next saw the accused on September 1 st which was the day of the day of wedding. B.S.1 and she were bridesmaids and the wedding ended early in the afternoon at which point she returned to B.S.1’s residence where she, P.K., B.S.1 and her brother J.S. hung out.

She said that A.L. came to hang out as well. 23 . At some point during evening her sister B.S.1 went to bed and after this she and P.K. had sexual intercourse. After that, she testified, that A.L. came to her indicating that he knew that she and P.K. had sex. Her explanation to him was that P.K. was persistent and she didn’t know what to do. She said that A.L. acknowledged that P.K. could be pushy, and he was annoyed with him. 24 . J.S. testified that she indicated that she and A.L. went into the basement for the purpose of having sexual intercourse.

After initial foreplay he indicated that the removed each other’s close so that both were completely naked. She said that sexual intercourse ensued, initially in a position where she was straddling A.L. while he sat on the couch, and progressing to a position where she was up against the wall, with her legs wrapped around him. She indicated there were other positions used. 25 . During the intercourse she indicated that A.L. wanted her to call him “daddy” and that he was more aggressive during this encounter.

She said that he slapped her butt at least 10 times and slapped her across the face on two or three occasions. The slaps were hard enough that she winced when he did it. 26 . During intercourse he ejaculated, she believed on more than one occasion, always using a condom and that the total encounter lasted 2 ½ to 3 hours ending only when she became too dry to continue and vaginal penetration was painful. They then dressed and went back upstairs. A.L. left shortly after this.

B.S.1 and P.K. were in their room and she believed J.S. was upstairs as well though she testified that she went to sleep in the upstairs bedroom and that J.S. went to sleep on the couch in the living room but indicated she did not remember seeing him. 27 . She testified that she and her brother went back to Wisconsin on the following day and the only further contact with A.L. was over Snapchat and that the sexual nature of that concluded when she started to date a boy her age. She then felt that it was wrong to speak to A.L. in a sexual manner. The contact eventually ended completely. 28 .

She testified that P.K. knew of the encounters between she and A.L., as she thought, did two other friends – Tyler and Jeremy. She also later learned through conversation with her brother J.S. that he was aware. 29 . During cross-examination J.S. was shown a spreadsheet that she said was used in preparing for statement to be provided to police in January 2019 in Ontario. She acknowledged that her sister B.S.1 and father had some help in putting it together but that she was primarily responsible. 30 .

She insisted that A.L. contacted her first notwithstanding that she had been given contact details by P.K. and disagreed with the proposition that she was the person who made first contact. 31 . She also disagreed, when put to her, that the Snapchat contact had been interrupted prior to the first in person contact when she revealed that she had a boyfriend. 32 . She denied that there were no nude photos exchanged insisting that she had exchanged totally nude photos and that A.L. had provided photos of his penis. 33 .

She denied having access to any Snapchat conversation in preparation for making her statement. 34 . With respect to the first contact, she was shown exhibit D2 which was a monthly Calendar from August and September 2018 and based upon that agreed that the sexual contact must’ve occurred on a Wednesday and that the previous encounter at the pool of his grandparents could only occurred on the 27 th or 28 th of August. When asked why she was so certain that the first incident occurring on the 29 th she indicated that in

part it had been from looking at Snapchat but when pushed on this indicated that she did not in fact have Snapchat with her when she prepared her statement and that she meant was that she was using a memory of what occurred on Snapchat. She expanded on this by saying that she was assisted by reviewing her sister B.S.1’s mesages from that time. 35 .

On cross-examination regarding the second incident of intercourse she acknowledged that she had stayed at the campground on August 31 st and, when it was put to her that there had been a barbecue at A.L. ’s grandparents residence after the wedding she acknowledged that she now remembered this. She denied that A.L. stayed there and never came to her sister’s residence. 36 . With respect to the encounter both in the basement and in the vehicle she acknowledged that in both cases she and the accused were completely naked and she was able to see Mr. A.L..

When asked if he had any birthmarks or tattoos she indicated she did not see any and when a photo, marked D3, was shown to her she identified A.L. as the person in the photo that indicated she had not seen the tattoo which is clearly visible on his chest. 37 . She acknowledged that in her statement to police she did not mention the different sexual positions, attempting to have sex standing up, the reference to A.L. asking her to call him daddy, the slapping of the face or the butt. 38 .

She was confronted with disclosure from a pretrial preparation meeting with the Crown and police occurring on the night before her testimony where she disclosed being slapped on the face and acknowledge that this was the first time, she had revealed this. When asked if she had revealed to them in that same meeting whether she had been slapped on the butt she insisted that she did though it was not contained in the disclosure provided to the accused.

39 . The second witness, the Crown was Constable Legace an 11 year member of the Royal Canadian Mounted Police. She testified that though she was not the original investigator in this file she was tasked with reviewing the file for follow-up and asked for the assistance of the Toronto Police Service in obtaining a statement from B.S.1. She indicated this was completed and that she also assisted the Crown in attempting to have B.S.1. contacted for the purpose of the service of the subpoena.

She detailed her efforts, including contacting the father of the complainant and numerous efforts to contact the complainant’s sister through cell phones, text message, and her place of schooling. All of this proved to be unsuccessful and culminated in an affidavit of nonservice. 40 . In cross-examination Cst. Legace was asked whether she participated in the pretrial preparation meeting of the complainant described in the complainant’s testimony.

She indicated that she had done so and when asked whether the complainant had revealed in that interview, as she testified, that A.L. slapped her on the butt or asked her to call him daddy Cst. Legace testified that such disclosures were not made. 41 . The Crown also called J.S.. the brother of the complainant. He testified that he is currently a member of the Canadian Navy stationed at Halifax dockyard.

In the summer of 2018, he indicated that he was living in Wisconsin and travelled to Nova Scotia and New Brunswick for the purpose of visiting family and attending the wedding of his sister B.S.2 in September. 42 . While he was unsure as to when he was in New Brunswick, he thought it was a week to two and indicated that he stayed with his sister B.S.1 and her boyfriend P.K.. During the course of his stay there he said that he met A.L., who popped in and out of the house 5 to 7 times. 43 .

Other than the times when he visited at B.S.1 and P.K.’s residence, he said that he met A.L. at a pool and remembered going to that same pool on two occasions. When he went to the pool he was with B.S.1, P.K. and J.S. and on at least one occasion the accused was present. 44 . He believed the owners the pool were coworkers of P.K. and described the homeowners as in their 50s or 60s. He was unsure as to the times or days of the visits to the pool. He indicated that he didn’t have a very good memory when it comes to those details. 45 .

When asked about his sister’s wedding he indicated that he didn’t remember some of it including what day it was but he did have a memory of many of the details including that it was at a campground, remembering the ceremony and the reception afterwards. He believed the reception ended at approximately 12 and was unsure what happened after that including not remembering where they went nor where he slept that evening. He indicated he believed he slept at B.S.1’s but he may have slept in the cabins at the campground where he slept the night before. 46 .

Returning to his encounters with A.L. he was unable to say how he got to P.K.’s nor how he left. 47 . When asked about the matters before the court he indicated that on one occasion when he was trying to sleep on the couch in the living room at B.S.1’s residence he heard J.S. and A.L. having sex . When asked for detail he indicated that while lying on the couch he heard slapping and what might have been moaning and was confused about what the noise might be. It was brief and he put his earbuds in to mask the noise so he could go to sleep.

He was in the living room and he believed the noise was coming from the basement but was unsure. 48 . The following morning, he asked J.S. what was going on and she told him that she and A.L. had sex. He did nothing with this information as she asked him not to tell anyone. He did not see anyone either enter or emerge from the basement prior to or after hearing the sounds. 49 . He believed he heard the sounds at approximately 10 or 11 PM and never spoke with A.L. about the sounds. Accused 50 .

The accused testified on his own behalf indicating that he currently lives in Alberta in close proximity to CFB Wainwright. 51 . He indicated that he grew up in Kingston Ontario, graduated from high school before obtaining employment with UPS. Eventually he moved to Tampa Florida with his mother and father after his father was posted to that location in 2015.. 52 . He remained there until 2017 when he returned to New Brunswick to further his application to become a member of the Canadian Armed Forces.

He stayed during this time with his grandparents in Burton New Brunswick and remained there up until February 2018 when he was shipped out having been successful with his application to the military. After first completing basic training in St. Jean, Quebec it was posted to Wainright Alberta in May 2018. His training continued at that location until an injury resulted in him being placed on medical limitations, requiring physiotherapy and finally surgery in March 2019. As a result he was eventually granted voluntary release from the military in October 2021. 53 .

With respect to the complainant he indicated that his first contact with her occurred in late October 2017 or early November when she contacted him through Snapchat. 54 . His profile, according to him, was open to the public and he would’ve had 150 to 200 people as contacts. He described their conversation as mostly small talk and she advised him she was 18 and finishing grade 12. She indicated to him that she was hopeful of becoming a nurse. She used a username, as do others, hers being JOC. At the time of their conversations he testified that he was not aware that she was the sister of B.S.1. 55 .

He indicated that he only discovered the connection in June or July 2018 when he told her he was returning to New Brunswick and she advised him that she would be there at the same time. He was taken aback by the fact that she was B.S.1’s S.’s sister as he thought she was simply a random individual in Wisconsin.

56 . The accused denied that any of the contact between he and the complainant was sexual in nature including denying that there was ever any sexual conversation, or that any pictures of a sexual nature were exchanged. He denied that he initiated any conversation. 57 . He did agree that the complainant had confided in him about her emotional problems including that she was suffering from anorexia and bulimia and had attempted suicide. 58 .

The accused testified that he arrived in New Brunswick on the 19 th of August and left on September 2 nd 2018, which was corroborated by an itinerary entered as an exhibit. 59 . This was his first leave from the military and with the exception of staying with a friend in in the village of Gagetown for one evening he stayed at his grandparent’s residence. 60 . He indicated that he went out to Dooley’s on a number of occasions and that he did see P.K. early on in his visit but very briefly. 61 .

His next encounter with P.K., according to him, was on the 27 th or 28 th of August 2018 when his grandparents drove him to P.K.’s house. This was the first time that he was introduced to J.S. and J.S.. Two other friends, a Raymond and Nick, were also present and after his arrival at 8 or 830 they played Xbox for approximately an hour and ½. After this P.K., the accused, Raymond and Nick went to Dooley’s to play pool and drink beer. They stayed for another hour and ½ then walked back to B.S.1 and P.K.’s residence where he stayed until approximately 1 AM. His grandfather then picked him up. 62 .

The only other time that he was in the physical presence of the complainant was on September 1st, 2018. 63 . He indicated that he had access to his grandfather’s 2014 red Jeep Compass which he described as having an interior festooned with Chicago Blackhawks memorabilia including a jersey stretched across the front seats. He also indicated that the vehicle was very dirty. 64 . With respect to his encounter with the complainant on September 1 st he testified that this J.S., B.S.1, their mother and her partner her boyfriend, along with P.K. arrived at the residence at approximately 530 or 6 PM.

People . were in and out of the pool, they barbecued and they spent time in the gazebo. Mrs. S. and her partner left at approximately 830 or 930 and the remainder of the visitors stayed for approximately an hour or an hour and ½. 65 . After their departure he remained behind to clean up with his grandfather, shut the pool down and then have a couple of beers on the back deck following which he went downstairs to sleep and was only awoken at approximately five or six the next morning. 66 .

He denied going to P.K.’s residence that night and indicated he had only been in the basement of that house on one occasion in September of 2017. 67 . He specifically indicated that he had never been alone during the course of summer of 2018 with J.S. nor had he ever been in a motor vehicle with her. 68 . He specifically denied that he had ever had sex with J.S. indicating the only physical contact between them would have been a handshake. 69 .

He testified that after he returned to Alberta in September he cut all of the social media ties except for family and friends as he was going to be involved in training during which she only had access to his phone for a period of one hour per day. 70 . He also testified that there was one occurrence in May of 2018 when the complainant ceased communicating with him through Snapchat as she advised him that she was seeing someone and felt it best that she remove him from Snapchat. He wished her the best and said goodbye. 71 .

With respect to what eventually became exhibit D-3 he identified himself in the exhibit along with the tattoo apparent on his chest which he indicated he got in May 2017 in Tampa Florida. 72 . In cross-examination he acknowledged that P.K. was a longtime family friend and that they were close. He admitted that when he moved to New Brunswick in 2017 P.K. was his one real friend there and that he gravitated toward him. He acknowledged meeting B.S.1.at that time. 73 .

He denied ever talking with B.S.1. about her family until, he says, the gathering of September 1 st 2018 when she and the others talked about their upbringing. 74 . With respect to the occasion which the complainant removed him from Snapchat he indicated that approximately a month later she reached back out to him indicating that it hadn’t worked out with her boyfriend and she re-added him to Snapchat. He, like the complainant, indicated that he had no records of conversations between he and the complainant due to the nature of Snapchat. 75 .

He, during the course of cross-examination, again denied any sexual contact with the complainant and when pressed on why he’d have any memory of details indicated that the only two outliers to the leave were the meeting of J.S. and her brother and the gathering at the pool. 76 . He acknowledged that J.S. would have seen him with his shirt off at the pool on September 1st and according to his testimony, if he had a tattoo, she would’ve been able to see it at that time. 77 .

He acknowledged on cross-examination that he could not say with certainty that the vehicle was dirty at any particular time during his visit and that his description of the vehicle as dirty was a general one. 78 . He acknowledged that the complainant had developed an emotional connection with him and confided in him about her eating

disorder but denied having any real connection with her. 79 . He confirmed that the complainant’s evidence that there would have been an exchange of approximately 100 photos but denied that any were sexual in nature. 80 . When pressed on whether he, in a hypothetical, would have deleted a platonic friend from social media platform at the request of a girlfriend he suggested that he would if it was important to his girlfriend. 81 . Counsel for the accused also called the grandfather of the accused, Gary Snider, as a witness. Mr.

Snider testified that he is a 39 year member of the Canadian Armed Forces and lives with his wife and Burton New Brunswick. 82 . He testified that in the summer of 2018 his grandson visited him while on leave from the military. He confirmed at the time that the only vehicle that he had and that to which the accused would have access was a 2014 Red Jeep Compass which he described as typically dirty as a result of doing renovations at his residence at the time.

He also confirmed that the vehicle’s interior had several pieces of Chicago Blackhawks memorabilia including jerseys on the seats, small gloves hanging from the mirror and a wrap on the steering wheel. 83 . While his grandson had access to the vehicle for the purpose of going to the ultra-mar, for any other times that the accused was to go anywhere he would drive him as he did not want his grandson drinking and driving. 84 . He confirmed the events of September 1 st , 2018 in which the S. family attended at his residence for the purpose of using the pool and having a barbecue.

He testified that P.K. and B.S.1. were almost like children to he and his wife and it was not uncommon for them to come to the pool. 85 . After the barbecue of September 1 st , 2018, he said that Mrs. S. and her boyfriend left at about 9 PM with the remaining individuals leaving about an hour later. He testified that A.L. stayed behind to help him clean up, they had a couple of drinks on the deck and they talked and then went to bed. 86 .

When showed exhibit D3 he indicated that he recognized the tattoo as one that A.L. had obtained when he was living in Tampa, Florida and that it was a replica of a gift that his father brought to him from a deployment. 87 . On cross-examination he was unable to say when his grandson arrived in New Brunswick nor how long he stayed but he knew it was for more than six days. 88 . He denied the possibility that his grandson had access to any vehicle other than his own. 89 . He testified that during the course of his grandson’s visit in the summer of 2018 he went over to visit P.K. more than five times.

The Onus and Standard of Proof 90 . Mr. A.L. , like every other person charged with a crime, is presumed to be innocent until the Crown has proven his guilt beyond a reasonable doubt. The Crown bears the burden of proof throughout the entire trial. The accused does not have to present evidence or prove anything. [1] 91 . This principle “is common to most adversarial systems of criminal law.

It is intertwined with the presumption of innocence, and it requires that, in order to validate a conviction, the prosecution bears the burden of satisfying the trier of fact that the accused is guilty on the basis of proof beyond a reasonable doubt .” [2] 92 . In Wilson , Justice R.S. noted the “evident danger” is cases where the prosecution is “effectively grounded solely on the testimony of a complainant, and the defence on the diametrically opposed testimony of the accused” [3] is that the burden of proof may be forgotten, and the case determined on the basis of credibility. 93 .

It is crucial for a trial judge, engaged in a case such as the one before me, not to forget the fundamental and intertwined principles that everyone is presumed innocent, that the burden rests with the Crown and that the burden can only be displaced on the basis of proof beyond a reasonable doubt. It is not enough for a court to believe that an accused is probably or likely guilty. 94 . Of course, the standard is reasonable doubt and not absolute certainty. A reasonable doubt is not based on sympathy or prejudice, nor is it “proof beyond any doubt” or “an imaginary or frivolous doubt.” [4] 95 .

Reasonable doubt must stem from reason and common sense and is logically connected to the evidence or lack thereof. It cannot be grounded in speculation or conjecture. [5] 96 . The Crown must prove all of the essential elements of the offence beyond a reasonable doubt and in determining whether they have met this burden, I must consider the evidence as a whole. Reasonable Doubt and Credibility 97 . As described above, it is crucial in a trial involving the assessment of credibility of an accused to assess that person’s evidence applying the reasonable doubt standard. In R. v.

W.(D.) , [6] the Supreme Court provided an approach to the assessment of an accused person’s credibility by using a three-step analysis. Those steps are as follows: a. in the first step, the trial judge should ask him or herself whether she or he believes the testimony provided by the accused. If so, an acquittal must be entered. If not, then

b. the second step requires a consideration by the trial judge as to whether the accused person’s evidence causes her or him to have a reasonable doubt concerning the accused person’s guilt. If so, an acquittal must be entered. However, if the answer to the first and second questions is no, then c. the final step in the analytical process developed in W.(D.) requires the trial judge to consider the totality of the evidence presented to determine if the accused’s guilt has been proven by the Crown beyond a reasonable doubt. [7] 98 .

The majority in W.(D.) never intended that this formula be a word for word script, nor the failure to use the words an automatic ground for reversal. The Court has taken great pains since the decision to emphasize that the purpose of the wording in W.(D.) . is to ensure that lack of credibility of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. 99 . As noted in Wilson a plethora of jurisprudence has arisen from the W.(D.) and in that case the Court provides an extrapolation of the principles which have emerged. I am guided by those principles which include that :

i) the issue at the end of a trial is not credibility, but reasonable doubt: ii) The W.(D.) formula is a roadmap to remind the trier of fact the ultimate goal is proof beyond reasonable doubt and not merely a credibility contest but it is not the only route; iii) I, as the trier of fact, need not firmly believe or disbelieve any witness or set of witnesses. A reasonable doubt need not rest upon the same sort of foundation of factual findings that is required to support a conviction.

It can arise from an absence of evidence or from a simple failure of the evidence to persuade the trier of fact to the requisite level. 100 . To repeat the caution offered in Wilson , in a case where the prosecution is grounded on the testimony solely of the complainant and the defence on a denial by the accused, the danger is that the case will become a credibility contest and the burden of proof will be lost on the trier. I must instruct my self, and do, not to fall into this trap. The burden, which is proof beyond a reasonable doubt, is on the Crown and remains so throughout the trial.

Credibility Generally 101 . In addition to the considerations of W.(D.) this case requires a careful assessment of credibility. In R. v. Gahan , [8] the Court of Appeal addressed the assessment of credibility by trial judges and held it is the function of weighing many factors. A useful staring point is to remember that a trier of fact can accept all of the evidence, some of the evidence, or none of the evidence of each witness. [9] 102 . The term credibility may be misleading.

For some time, courts have stressed that a finding of credibility involves both an assessment of the truthfulness of the witness and the reliability of the witness. [10] 103 . Reliability is, according to an oft-quoted passage, concerned with the accuracy of the witnesses account and is a consideration of the witnesses’ ability to observe, recall and recount. Issues with powers or observation., opportunity to observe, or the ability or inability to recall matters may impact the reliability of a witness. 104 .

Credibility, or veracity, of a witness relates to a witness's truthfulness. [11] Inconsistencies between trial testimony and earlier statements, the witness interest in the outcome of the case, or contradiction of a witnesses evidence by forensic evidence may impact credibility. 105 .

An absence of motive for the complainant to lie, a factor emphasized by the Crown, is a relevant to the fact-finding process [12] however, I must be careful to remember that this is but one factor, the accused has no obligation to prove a motive to fabricate and to not to let this factor turn into a reversal of the onus of proof. [13] 106 . Counsel for the accused suggested that the demeanour of the witness is a relevant consideration. It, however, is but one of the elements that enter into the credibility of the evidence of a witness and can be both an unreliable indicator of truth and fallible. [14] 107 .

The fact that a witness may be “found to be credible does not answer the question of whether the evidence provided is reliable… The distinction is an important one and must be recognized by a trial judge in order to reach a just verdict.” [15] 108 . It is also important in trials of this nature to avoid determining credibility based upon stereotypical reasoning or assumptions about how a person should react in any given situation. This is particularly true with respect to allegations of sexual assault. [16] As Cloutier, P.CJ. said in R. v.

Orser , it is “neither logical nor a matter of common sense to expect a complainant to behave in any particular way”. [17] 109 . The timing of disclosure in relation to sexual assaults has also been the subject of both statutory and common law action to avoid stereotypical reasoning. As Justice Major noted, “the time of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.” [18] 110 . I am mindful here that the complainant is relating events from a time when she was a minor. The Ontario Court of Appeal in R. v.

M. (A.) . [19] considered the evidence of child complainants and detailed guidance to trial judges:

i) every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate; ii) no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence;

iii) the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred; iv) one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given.

Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions; and

v) Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned. 111 . A similar approach to the evidence of children is mandated where an adult testifies to events which occurred when the witness was a child.

The presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [20] 112 . Before leaving credibility, there is one more point that requires review. In this case the Crown advanced evidence of what might have been a prior consistent statement by the complainant to her brother without objection by the accused. The Crown, when asked by the Court, noted the purpose of the statement was not for the truth of their contents but as narrative evidence. 113 .

In the Supreme Court of Canada’s decision in Dinardo , Charron, J. wrote that prior consistent statements may be admissible as part of the narrative and that the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed. I am mindful not to use such statements for the impermissible purpose of confirming of corroborating the truthfulness of the accused evidence.

It may, as the Court has held, be used only “for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility". [21] The Elements of the Offence 114 . The crime of sexual assault is “comprised of an assault within any one of the

definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated” [22] For the Crown to succeed in establishing the offence of sexual assault it is necessary that it prove each of the following elements beyond a reasonable doubt: i. that A.L. intentionally applied force to the complainant; ii. that the complainant did not consent to the force that A.L. (intentionally) applied; iii. that A.L. knew that the complainant did not consent to the force that A.L. (intentionally) applied or was reckless or was willfully blind to whether the complainant consented; and iv. that the force that A.L. (intentionally) applied took place in circumstances of a sexual nature. 115 .

Both the question of whether force was applied and whether that force was of a sexual nature are objective. [23] The absence of consent, however, is subjective and is assessed by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred. [24] 116 . This is not a case, however, where the accused suggests that there was consent to the activity in question. Consent would be no defense by virtue of s. 150.1 which holds that when an accused is charged with an offence under

section 271 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. There is a close in age exception in s. 150.1(2.1) but this, by virtue of Mr. A.L. ’s age, would not apply. 117 . The mens rea of an allegation of sexual assault is satisfied when evidence shows that accused intended to touch the complainant and had knowledge that she was not consenting, or was reckless or willfully blind to absence of consent. [25] 118 .

Again, this is not a situation where the accused suggest either consent or proposes an "honest but mistaken belief in communicated consent". [26] 119 . This issue here is whether the Crown has established, beyond a reasonable doubt, that a sexual act took place. If I find that it did then the act must have occurred in the absence of consent, based upon the relative ages of the parties. I need not concern myself with the question of mistaken belief in communicated consent as the accused has not suggested he had any belief in consent having denied the sexual encounters completely. Position of the Parties 120 .

The Crown submits that a conviction should be entered as it has established all of the elements of the offence beyond a reasonable doubt. The Crown asserts that on the evidence of the complainant, she and the accused had sexual intercourse on two occssions and due to her age, no consent could be valid. 121 . The accused, through his counsel, asserts that there was never any sexual contact between he and the complainant. He urged me to reject the evidence of the complainant based upon contradictions or inconsistencies in her testimony.

He also urges me to remember the dictates of W.(D.) and find that I have a reasonable doubt with respect to the guilt of his client.

Analysis The Crown Evidence 122 . The complainant C.L. testified unequivocally that there were two sexual encounters. She provided a detailed account of these encounters. Her testimony was delivered in a way that suggested she was trying to answer questions in a truthful manner. She was responsive to questions, both in direct and cross-examination, when she could not recall something, she said so and she was composed in her testimony. Appearances of telling the truth, however, can be both an unreliable indicator of truth and fallible. 123 .

Despite the significant detail provided by the witness, in assessing her evidence I note she acknowledged that much of that detail in relation to the specific allegations of sexual assault was not provided in her initial account to police. These include: a. That she had met Mr. A.L. at his grandparents prior to the first sexual contact; b. That Mr. A.L. asked her to call him daddy during the second sexual encounter; c. That Mr. A.L. had slapped her face during the second sexual encounter; d. That Mr. A.L. slapped her buttocks during the second sexual encounter; e.

The variety of sexual positions, including the attempt to have sex while standing, during the second sexual encounter; f. The oral sex in the first encounter; g. The accused’s statement about the oral sex; and h. The variety of condoms the accused allegedly offered her during the first sexual encounter. 124 . It is not uncommon for witnesses to add details after an initial disclosure and these additional details were explained by the complainant in that she was providing information about more than just the accused in her first statement to police and that she had not been pressed for details in that statement.

That said those additions are something that causes me pause with respect to adhering to the Crown’s suggestion that I positively assess her credibility based upon the level of detail in her testimony. I will return to this shortly. 125 . The testimony of the complainant was contradicted by evidence advanced by the accused and his grandfather. That, of course, means little if I do not accept their testimony or, under the W.(D.) analysis I have no reasonable doubt arising from it.

Given that I will deal with the contrast between their evidence and that of the complainant in the context of the W.(D.) analysis. 126 . Three specific issues cause me concern with the evidence of the complainant. First, while the addition of details, as described above, might be unsurprising and perhaps even expected, those disclosures continued up to the night before the trial during trial preparation. There the complainant disclosed that the accused slapped her across the face during intercourse. The addition of this detail is, again, not by itself concerning.

These fresh details, however, continued to emerge even during testimony, where, for the first time it appears, she revealed that the accused slapped her repeatedly on the buttocks and asked her to call him daddy. 127 . Again, the addition of detail may only show that the witness is remembering things through the stress and pressure of testimony. What is troubling, however, is that she was asked specifically if she had advised the Crown and police in her preparatory meeting about the slaps on the buttocks and she insisted that she did.

She was confronted with a document provided to counsel for the accused arising from that meeting and agreed there was no mention of the slaps to the buttocks. Despite this she insisted she had revealed that information. This, however, was contradicted by Cst. Legace who was present during that meeting. 128 . Second, during cross-examination about how the complainant could remember the date August 29 th the following exchange occurred: Counsel: How are you so certain that the occasion that you testified to that you had sex with Mr. A.L. in his car was on the 29 th ?

J.S.: Um…by looking back at the time…looking back at Snapchat,,,um…or just my memory also of the time too. 129 . When defence counsel pressed her on this, recalling that she had no access to Snapchat while giving her statement to police, she said that she meant she thinking back to Snapchat when gave the statement and that she meant was that she was using a memory of what occurred on Snapchat.

Given that the original question related to how she could recall a specific date with such clarity and her original answer, her subsequent clarification causes me concern with respect to at least the reliability of her testimony. 130 . Counsel for the Crown has suggested that there is no apparent motive to fabricate in this case. I agree but this, as I have mentioned, is of limited use, and risks reversing the onus of proof. 131 .

In assessing the evidence of the complainant, I am mindful of the passage of time, the fact that she was only 15 at the time and that she was in a vulnerable state due to her ongoing mental health concerns. Issues with memory or detail, even issues, with contradictions between her evidence and that of Cst. Legace could be a result of some combination of those facts. 132 . I turn to the evidence of her brother, J.S.. He testified that the morning after he heard noises, he thought might be sex that J.S. said told him that the noises he heard were her having sex with the accused.

This statement is not admissible for the truth of what it asserts, but may only be used “for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility". [27]

133 . Such statements are, on occasion, advanced by the Crown to assist the trier in understanding the flow of the events including how the allegations came to light. This was, according to the Crown, its purpose here. The difficulty with that is, according to the testimony of the complainant, that this conversation did not occur. She testified in direct examination that she found out her brother knew about the sexual encounter during a conversation in the fall of 2018 and it was he who told her she knew.

In cross-examination she was specifically asked if she told J.S. and she testified that she had not, and it was him that told her he knew. 134 . While it may be that the conversation did not happen in the way J.S.. testified to, and indeed I find him to be a largely unreliable witness, due to a lack of apparent ability to recall events, it does mean that his evidence has no value in assisting me in assessing the complainant’s credibility. 135 . With respect to J.S.., as indicated above, I found him to be an unreliable witness. His memory of events was poor.

For instance, there was consensus amongst the other Crown witnesses that there had been a gathering at the pool on the day of his sister’s wedding. He could remember nothing following the reception from that day, though he did remember being at the pool at some point. 136 . From his evidence, however, emerges one salient point. He remembered hearing what sounded like a sexual encounter in the basement of the residence of his sister. J.S. testified that he told her this in the fall as well. This could corroborate her version of events.

The evidence, however, is not that he heard specific voices or saw anyone going to or emerging from the basement. The connection to the events here comes from a statement he says J.S. made to him that she says she did not make and, even if she did make, has limited evidentiary value. It must also be assessed in the context of her admission that on the same night she says she had sex with A.L., she also had sex with P.K.. 137 . The question of other sexual activity was adduced by the Crown for the purpose, again of narrative.

It cannot be used for the purpose of supporting one of the twin myths articulated in s. 276(1) of the Criminal Code . That evidence of other sexual activity has no real substantial evidentiary value. Indeed, its only relevance is that, if I accept the evidence of J.S.. that he heard what sounded like a sexual encounter, that it does not mean, by necessary implication, that the encounter was between J.S. and A.L.. W.(D.) and the Evidence of the Accused 138 . The accused and his grandfather testified.

A.L. denied the sexual activity between he and the complainant took place and the evidence of his grandfather provides confirmation for some aspects of his testimony. 139 . Their evidence, if believed, would make it impossible for the accused to have committed the acts alleged. Their evidence, including the presence of the tattoo on the complainant’s chest on a date prior to the summer of 2018 would call into question the reliability of the evidence of the complainant. 140 .

To assess their evidence, I must view both through the lens of the Crown’s burden and the requirement to establish all elements beyond a reasonable doubt. The framework suggested by W.(D.) is the starting point. 141 . As mentioned above in the first step in W.(D.) , the trial judge should ask him or herself whether she or he believes the testimony provided by the accused. If so, an acquittal must be entered. If not, then the trial judge proceeds to the second step. 142 .

With respect to the evidence of the accused, there are, of course, some aspects I accept including his educational and work background and the timing of his visit to New Brunswick. On the salient points of his denial of sexual activity I cannot say, in the context of the W.(D.) analysis, that I believe him. I have several specific concerns with the evidence of the accused. 143 . First, his suggestion that the relationship via Snapchat with the complainant was nothing more than causal does not harmonize with the evidence I do accept.

The conversation lasted, in his version of events, close to a year and involved, he acknowledged, the exchange of at least one hundred images. Even if those images were simply the by-product of each contact that would involve a significant amount of discrete exchanges. 144 . The conversation was temporarily halted due to the complainant entering into a relationship and feeling uneasy about maintaining a conversation in that context.

While that speaks to the state of mind of the complainant, it also speaks to the context of the conversations between the complainant and accused, a context consistent with her opening up about her mental health struggles – something that suggests, at least, a deeper bond than he was prepared to acknowledge. 145 . Further, during the conversation he says he only learned that the complainant was the sister of his very close friend’s girlfriend near the time of their eventual physical contact. He said he was taken aback.

Given what must have seemed a monumental coincidence, there is no indication in his testimony that he probed further to see if their Snapchat exchanges emerged from this shared connection, nor any indication that he, having learned she would be in New Brunswick, made plans to at least meet in person. 146 . The nature of the eventual in person encounter suggested by the accused as having occurred is also disharmonious with his other evidence.

Again, according to his evidence he had engaged in a 9 or 10 month social media exchange with a person who has revealed to him deep personal issues, who is connected with someone with whom he and his family are extremely close, and with whom he, by incredible coincidence, will be in the same place. In the face of this he suggests that their contacts were minimal, brief and never, in his version, outside the presence of others. This does not seem credible to me. 147 . I am also concerned with the level of similarity between his evidence and that of his grandfather with respect to the events of September 1 st .

Their version of events seemed exceptionally close in detail to the point of seeming scripted. 148 . This is also true of the tattoo which both indicate was present on the chest of the accused prior to the events of September 2018. No questions were asked of Gary Snider as to how he would know when the accused got the tattoo, nor whether he saw it on his grandson at the pool in September 2018.

What is most troubling, however, with the suggestion that the tattoo was present prior to September 2018 (thus calling into question the reliability of the evidence of the complainant when she could recall no tattoos on him) is that she would have seen the tattoo, had it been present, at the pool on September 1 st . 2018 in a non-sexual encounter. The tattoo is large

and distinct. Had it been present on September 1 st it seems reasonable that the complainant would have noted it. That she did not may speak to her reliability as a witness; it may also, however, call into question the timing of the creation of the creation of the tattoo. 149 . With respect to the evidence of his grandfather I also note that it potentially conflicts with his on the number of visits to P.K.’s residence. 150 . Given the above, in the context of the first stage of the W.(D.) I cannot say that I believe the accused to the extent that I must acquit him. 151 .

The second step of W.(D.) requires a consideration by the me as to whether the accused person’s evidence, considered in the totality of all the evidence, causes me to have a reasonable doubt concerning the accused person’s guilt. If so, an acquittal must be entered. 152 . It is important for me to remember at this stage that I am not picking between versions of events. Nor is it enough for me to believe that the accused is probably or likely guilty. The W.(D.) framework is meant to firmly focus my mind on the twin aspects of the presumption of innocence and the Crown’s burden of proof. 153 .

The evidence of the accused, considered with all the evidence, including the evidence of his grandfather, and the issues I detailed above with the testimony of the complainant leave me with a reasonable doubt. Something may have happened between the accused and the complainant. He may be guilty. It is not enough for me to believe, as indicated above, that something may have happened. I must be satisfied beyond a reasonable doubt of the guilt of the accused and I cannot, given the totality of the evidence, say that I am. 154 . As such, I find A.L. not guilty of the offence charged. 155 .

I sought and received the consent of the parties to provide an oral

summary of these reasons. I am filing a full written judgment, proving a copy to the parties and noting that an oral

summary of this judgment has been read into the record. ______________________________Cameron Gunn, PCJ