R v Marler, 2023 ABCJ 165

In the Alberta Court of Justice Citation: R v Marler, 2023 ABCJ 165 Date: 20230808 Docket: 210508057P1 Registry: Calgary Between: His Majesty the King - and - William Demontmollin Marler Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify RL or SY must not be published, broadcast, or transmitted in any way.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. Decision of the Honourable Justice L.W. Robertson Introduction [ 1 ] William Demontmollin Marler (the accused) is charged with two offences; sexual assault and sexual interference contrary to ss 271 and 151 of the Criminal Code of Canada, RSC 1985, c C-46 (the “ Code ”). The alleged victim of these offences is RL, the daughter of SY.

The accused met SY on a dating website in early 2020. He stayed with SY and RL on three occasions between March and December of 2020. RL was between 8-9 years old at the time of the alleged offences. The allegations came to light in early 2021. Credibility was the primary issue before the Court. For the reasons which follow I find the accused not guilty of all offences. Evidence [ 2 ] The events before the court occurred during three visits the accused made to the Calgary home of SY and RL in 2020.

The accused ordinarily resides in Vancouver but travelled frequently to Calgary for his business as a produce broker. After meeting SY on a dating website he stayed at SY’s home from approximately late February to March 9, 2020. Two more visits occurred between July 7-9 2020 and November 8 to December 8, 2020. A fourth visit in early 2021 was contemplated by the accused and SY, but was cancelled after RL informed her mother of the allegations. [ 3 ] RL and her mother SY testified for the Crown, as well as the primary investigator, Detective Drinkle of the Calgary Police Service.

The accused testified and denied the allegations.

1. RL’s s 715.1 Video Statement [ 4 ] RL’s evidence consisted of her video-recorded statement to Detective Drinkle and her viva voce testimony. RL’s video- recorded statement was admitted into evidence under s 715.1 of the Code . RL’s video-recorded evidence was given in a clear and forthright way. However, it sometimes differed from her viva voce testimony. [ 5 ] RL and SY knew the accused as “Josh.” It seems RL thought the accused’s last name was “Lawson” or “Lawler.” RL recalled her mother introducing the accused in the living room of their home.

She recalled her mother using the word “university” during this first introduction (cross-examination transcript, March 20, 2023 at p 41). When she first met him, RL thought the accused was nice. She also used the word “normal.” However, she alleged that one night, during the March 2020 visit, he came to her room while her mother was outside walking their dog. [ 6 ] RL said she was in her bedroom and wearing a “onesie” style pajama when this happened. She claimed the accused unzipped her onesie exposing her underwear. RL said the accused began massaging her vagina over the top of her underwear.

RL said the accused told her the massage was to help her with a dizziness episode she had been experiencing earlier that evening. RL said she told the accused to stop and swatted his hand away. Shortly after this she said they heard her mother return from the dog walk and the accused left her room. She said the accused warned her not to tell her mother and expressed anger in his facial expression when he did this. [ 7 ] This was the first incident of abuse. RL said it occurred three days after he first arrived at their home during the February/March 2020 visit.

She said numerous other incidents followed. [ 8 ] During the second visit RL said the accused stayed with them for three days. RL wasn’t sure if this occurred in June or sometime after June. RL said the abuse occurred two days in a row during the three-day visit. This visit coincided with RL having a sleep-over visit at a friend’s house. SY had also visited the friend’s mother for the purpose of having her hair cut. RL was not at home for one of the three days because of the sleep-over. [ 9 ] RL said the abuse “might have” occurred once or twice during a visit in November to December.

She said the accused had a broken arm during this visit. [ 10 ] RL’s video statement did not detail exactly which months the abuses occurred in. In this regard her evidence was difficult to correlate. However, she described various incidents occurring within the entirety of the accused’s three stays at the residence. These included: 1. One incident where the accused attempted to pull her pants down and tried to touch her vagina. RL said that she scratched his face with her fingernail to stop the attempt. RL said the scratch left a red mark on the accused’s face.

RL said the accused told her to lie to her mother about the scratch, to say that they had only been rough housing. 2. RL said the accused often used his fingers and his thumb to touch her vagina. Sometimes this was over her underwear and sometimes against her bare skin. RL said he would place his fingers inside of her vagina using a “clawing motion” to touch her. 3. RL said the accused once forced his way into her bedroom despite her closing her door and barricading the entrance. After entry she said the accused forced her to touch his penis with her hand, over his clothing.

She thought this event happened during the final visit, about a week before he left. RL remembered the accused telling her that this would help him relax. RL said the incident ended because she heard her friend outside their residence and went out to play with her. [ 11 ] RL could not precisely describe the frequency of the vaginal touching episodes. She approximated that the accused placed his fingers into her vagina about once per week.

However, she also said the incidents occurred “every other day.” [ 12 ] RL said all the incidents occurred when her mother was out of the home, at work, or while her mother walked the dog. She said the incidents happened mostly in her bedroom but sometimes occurred in the kitchen. [ 13 ] RL remembered the accused bribing her to commit the offences. She said the accused offered to buy her a new iPhone12, in any colour she wanted.

RL said she was not tempted by this offer and told the accused no. [ 14 ] RL admitted to being annoyed by the accused’s visits because she had to share her mother’s attention with the accused. She agreed she had exaggerated the dizziness episode to her mother prior to the first incident of abuse because of her annoyance. [ 15 ] RL did not disclose the abuse to her mother SY until she learned from SY that the accused was considering a fourth visit. She said she finally told SY because she did not want the accused to return to their home. RL said she also told a friend of the abuse prior to informing SY. 2.

RL’s Viva Voce Evidence [ 16 ] RL’s direct examination provided only limited additional detail surrounding the alleged abuse. She confirmed that she would have been in Grade 3 in March of 2020, around the time of the first visit. She thought the accused’s second visit occurred in June of that same year. She was uncertain whether she was in school when this happened. [ 17 ] RL recalled getting food poisoning during one of the visits, but had no precise memory of when this was, or if she missed any

school because of the incident. She remembered going with the accused and her mother to cut down a Christmas tree during one of the visits. [ 18 ] RL said that there were no photos of she, her mother and the accused together. However, she admitted to taking a photo of herself making cookie dough with her iPad. She said the accused was in the background of that photo. A photo of a baking tray covered with eight raw cookies was entered as exhibit 5. The accused is in the background of that photo. The photo displays both hands of a child, presumably RL, preparing the cookies and also holding the baking sheet.

It is unclear how RL could have taken the photo if hers are the hands visible in the image. [ 19 ] In cross-examination RL confirmed she had taken the photo by holding her iPad and composing the image herself. However, this cannot have occurred if hers are the hands in the foreground of the photo. When shown exhibit 5 she admitted to being confused by it, saying she had not seen the photo for a long time.

She testified that she may have been mistaken or confused the image with another photo she had taken. [ 20 ] RL’s cross-examined evidence generally supported the theme that she could not now recall the events as well as she had when she gave her original statement to Detective Drinkle. At times it was difficult to assess what RL now firmly remembered. For example, she first disagreed that she had ever feigned or exaggerated illness to get attention or to be excused from school. She reversed this evidence when confronted with her original video-recorded statement (transcript March 20, 2023 at p 43-44).

She also reversed her earlier evidence about asking for an iPhone 12 from the accused. While she did not admit to exploiting the alleged abuses of the accused to manipulate him into doing this, RL’s cross-examined answer did not accord with her earlier evidence on this point (transcript, March 20, 2023 at p 68). Further evidence about the iPhone “demand” was later provided by SY. That conversation suggested that RL indeed tried to manipulate the accused and exploit the alleged abuse for this purpose. [ 21 ] RL conceded that she was irritated by the reduced attention she received from her mother.

She attributed the lack of attention to her mother’s affection for the accused. She conceded she did not like this. RL agreed exaggerating illness and behaving insincerely to try to rectify this (transcript, March 20, 2023 pp 44-45, 46, 53-54, 61, 69-70). She also admitted to yelling at SY’s bedroom door when SY and the accused would not come out of SY’s room. She conceded this was because SY and the accused were not acknowledging her. [ 22 ] RL was also unclear on when some events occurred. For example, RL thought the accused’s second visit occurred in June of 2020.

As I will explain later there was conflicting evidence from other witnesses, including SY, that the second visit occurred from July 7-9, 2020. RL maintained that she had gone to visit her grandparents in Newfoundland during July and August of 2020 and wasn’t in Calgary during those two months. SY later testified that RL did not go to Newfoundland between the dates of July 7-9, 2020. [ 23 ] RL firmly denied lying about the alleged abuse to prevent the accused from returning to their home for a potential fourth visit (transcript, March 20, 2023 at p 70). 3. SY [ 24 ] SY is RL’s mother.

She said she first met the accused in January 2020 on an unspecified computer dating application (“app”). Like RL, she testified that the accused visited their residence on three occasions in 2020, February – March, July 7-9 and a period in November – December. SY said a fourth visit, which she wanted to occur, was cancelled when RL eventually informed her that the accused had inappropriately touched her. [ 25 ] The presentation and assessment of SY’s evidence was somewhat mixed. At times her evidence was clear, forthright and accompanied by hallmarks of accuracy.

At other times her evidence was vague, inaccurate and unnecessarily combative. SY frequently could not recall, or denied events and statements, only to be corrected from transcriptions of her original police interviews or emails to the investigators. When confronted with these passages she often claimed the previous statements were incorrect or taken out of context. [ 26 ] SY’s introduction to the accused was on a dating app, the name of which she could not remember. She said she chatted with the accused over several sessions on the app and decided she liked him.

She said both she and the accused used profile names, not their real names, for the purposes of the app usage. She agreed that this practice was common for users of dating apps. She said the accused introduced himself as “Josh.” SY insisted that she told the accused about her daughter RL prior to their first in-person meeting. SY agreed that she introduced the accused to RL as “ my friend Josh from university .” [ 27 ] SY initially found the accused kind, caring and attentive. He took care of her when she was ill and assisted RL with her homework. SY allowed the accused to care for RL when SY was at work.

SY saw this as a cost-saving measure, avoiding the need for a paid babysitter. [ 28 ] SY said the accused’s first visit occurred in mid-late February until the third week of March. The visit ended well and the accused left on good terms. The second visit was over three days in July (July 7-9). [ 29 ] SY said the first night of that visit she and RL went to a friend’s home without the accused so SY could have her hair cut. SY explained that the mother of RL’s friend was a hairdresser. SY and RL went there with another woman for that purpose.

After the haircut, RL spent the night at that residence as a sleep-over with her friend, while SY returned to her home with the accused. SY recalled the accused travelled by airplane during that visit. She said she and RL dropped the accused off at the airport for his return flight at 8:30 PM on July 9. SY confirmed RL did not go to Newfoundland between July 7-9, 2020. [ 30 ] SY said the accused’s final visit had a different “tone.” The accused arrived with an injury to his arm. SY cared for the accused with ice packs and also took him to an urgent care medical facility for treatment.

SY said the accused had a “brooding” disposition. She assumed this was because he was in pain. The accused complained to SY that RL was rude and unhelpful to him when he was needing assistance. The visit ended in December, shortly after SY, RL and the accused went to cut a Christmas tree together.

[ 31 ] SY remained in contact with the accused after the third visit. She had discussions with him over several days about a possible fourth visit from him in March or April of 2021. SY said the accused asked if RL was also consenting to the possible visit. The accused told SY that he did not feel comfortable during the third visit and did not want RL to “reject” him. SY agreed that she had discussions with RL on multiple occasions on April 12, 2021 about the possible visit. This is when RL told her about the alleged abuse. [ 32 ] SY said neither she nor RL took photos with the accused.

The accused had told her that in the past an inappropriate photo of himself was once shown to his parents. SY said the photo of the accused in exhibit 5 was taken by RL and retrieved from the deleted files of RL’s phone. SY identified the hands in the foreground of the photo as belonging to RL. This left SY unsure about how or when the photo was taken, or by whom. [ 33 ] In cross-examination SY agreed that she asked RL on multiple occasions, at least three times, between April 10-12, 2021 whether RL could accept another (fourth) visit from the accused.

SY also conceded that RL had confided to her about requesting an iPhone12 Pro from the accused. The context of the request was that RL had demanded the iPhone as payment for the alleged abuses committed by the accused. RL said she told the accused the phone had to be lavender in colour and delivered to her directly by the end of the day. This paraphrased conversation SY remembered having with RL appeared to contradict RL’s viva voce testimony on the same point. [ 34 ] SY denied ever knowing the accused’s real name.

She agreed, in her experience, it is common for dating app users to use a different name than their own. She said she identified herself as “Kitten69” for her profile on at least one dating app. SY said the accused’s profile on the app was Jthickc69.” SY denied the accused ever telling her that his real name was Will Marler or that he frequently used the name “Guy.” [ 35 ] SY said the accused told her his last name was “Lawson.” SY conceded that she had also informed the primary police investigator that the accused’s last name was actually “Lawlor” which she spelled out for the purpose of her police statement.

However, she admitted she was mistaken when she gave that name to police (transcript, March 21, 2023 at pp 79-80). SY’s evidence on this point was strained. She had to be reminded to answer the questions put to her by defence counsel. [ 36 ] SY sometimes displayed an unnecessarily combative attitude. This demeanor characterized the later stages of her cross- examined evidence, especially when SY’s viva voce evidence was contradicted by earlier police statements she had provided. For example, SY did not initially agree that RL acted annoyed or irritated because SY and the accused were not paying attention to her.

SY had observed exactly this kind of behaviour in her original police interview, taken in April of 2021, shortly after the allegations came to light. When the passages were brought to SY’s attention she tried to explain away the deviations by saying they were taken out of context (transcript, March 21, 2023 at pp 89-91). The passages put to SY by defence counsel were neither unclear nor confusing. [ 37 ] This occurred again when SY was asked about the accused’s interactions with RL during the third visit.

SY had told police investigators that the accused spent the “...vast majority of his time in the kitchen sitting in a chair being critical.” SY denied this sentiment and considered herself to be remembering the events more clearly when testifying in court (transcript, March 21, 2023 at pp 95-96).

SY similarly denied RL describing the accused’s behaviour towards her as “ very rude and mean ,” though she had used exactly those words in an email message to the investigators on April 14, 2021 (transcript, March 21, 2023 at pp 96-97). [ 38 ] Unlike RL, SY did not remember RL knocking of pounding on SY’s door when she and the accused were in SY’s bedroom, or RL yelling at them to come out and pay attention to her. 4. The Accused [ 39 ] The accused denied committing all of the sexual offences. His evidence was not perfect. There were some answers which cast his evidence in a suspicious light.

However, these difficulties with his testimony had multiple possible explanations. It is not fair to characterize those problematic portions of his evidence as defying common sense or indicative only of guilt. Other portions of the accused’s evidence were clear and detailed. Much of his account was supported by objective digital evidence. This demonstrated him to be a more careful and accurate historian of some events than either RL or SY. After full consideration I find that the accused’s evidence has raised a reasonable doubt. [ 40 ] The accused is in his mid-forties and lives in Vancouver.

His employment as a produce broker, dealing with perishable food items, necessitates travel to various locations. The accused first met SY in February 2020 on a computer dating application called “Bumble.” The accused said this app requires women to initiate interaction on the app by “liking” the profile of another user. The accused confirmed this is how he came into contact with SY. [ 41 ] The accused said his profile name on the app was “Josh.” He said he had set up his profile so that matches were possible geographically, for example, within 10 – 20 kilometers of his current location.

The accused said SY’s first profile name for the app was “Kat.” [ 42 ] The accused confirmed he had two or three conversations with SY prior to meeting her in person. He said his fist visit to SY’s home was on February 29, 2020. The accused drove to SY’s home around 9:00 pm. During that first meeting the accused said that SY introduced him to RL in the kitchen of her home. The accused said he was surprised to encounter RL as SY had not previously told him that she had a daughter.

The accused said SY introduced him to RL as “ Josh, my friend from university .” [ 43 ] The accused said that SY told him her real name at this first meeting. He said he responded by giving SY his full name, William Marler. He said he also told her that he normally goes by the first name “Guy.” Similar to SY, the accused agreed that many users of dating apps do not reveal their actual names, through their online profiles.

He said this protects users from identity theft, including those who might also seek to steal images or other biographical information from a dating website. [ 44 ] The accused said SY proposed that she continue to call him “Josh.” The accused said SY told him it would be embarrassing

for her to have to re-introduce him to her daughter, under his correct name. The accused said he agreed to SY’s request, but he was clear that SY knew his actual name. [ 45 ] The accused said he stayed at SY’s home that night as he was too tired to drive to his temporary residence. The following day, March 1 st , 2020 the accused said he, SY and RL spent the day together in Bragg Creek. That evening he returned to his temporary residence in order to prepare for numerous work meetings.

The accused confirmed he returned to SY’s residence for the night of March 4. [ 46 ] The accused remembered playing a video game with SY on the evening of March 4. While he said they were having fun RL often interrupted the game and was generally trying to irritate them. The accused said SY became angry at RL’s behaviour. The accused also recalled an incident where RL was pounding loudly on the door of SY’s bedroom, where he and SY were lying in late one Sunday morning.

He recalled RL yelling and complaining that they hadn’t come out for breakfast and saying “ ...it’s not fair .” [ 47 ] The accused said he left SY’s home on March 9 to attend to more business meetings. He said he left for Vancouver on the morning of March 10 and did not return to SY’s home again that month. The accused linked the dates of his arrival and departure in Calgary based on photos taken on his mobile phone. These photos were accompanied with dates and locations in the digital envelope information accompanying the photos.

The photos also demonstrate the accused’s return to a specific hotel in Salmon Arm BC, where he would often stay overnight on his return journey to Vancouver, showing he was at that location on March 11, 2020. The photos also confirmed the visit to Bragg Creek on March 1, 2020, as the accused originally testified. The photos were collectively marked as exhibit 7. [ 48 ] The accused denied any inappropriate contact with RL during the February – March 2020 visit. He denied ever going into RL’s room.

He denied RL ever complaining of dizziness or that he carried RL because of this. [ 49 ] The accused agreed with SY’s evidence that his second visit was from July 7 – 9, 2020. The accused said he arrived on July 7 at 10:00 am by way of a flight on the airline WestJet. He said he returned to Vancouver by way of a 9:00 pm return flight on July 9. Like SY and RL, the accused agreed that SY went to get her hair cut and allowed RL to stay overnight at her friend’s house. He said SY returned to her home and spent that night and the following day with him.

The accused said he and SY picked RL up around dinner time on the 8 th . The accused remembered being about 30 minutes late to pick up RL. He recalled RL being angry because she was hungry. [ 50 ] The accused recalled staying up late with SY the night of the 8 th . He said he and SY slept in late again on the morning of the 9 th . He said he and SY were awoken around 3:00 or 4:00 pm by RL pounding on their bedroom door and yelling loudly, similar to the March visit.

The accused said SY and RL drove him to the airport later that day. [ 51 ] The accused denied abusing RL sexually during this visit, or ever going to RL’s bedroom. [ 52 ] The accused agreed that he returned for a third visit, from November 8 – December 8, 2020. This time the accused drove to Calgary. The accused recounted that on November 8, while staying at the same hotel in Salmon Arm, he injured himself by falling. The fall injured the accused’s chest, left arm and right hand. At first, the accused thought it was merely a bruise or a painful, but unserious injury.

He recounted assessing three options for his originally planned visit to Calgary as a result of the injury: 1. attending the Salmon Arm hospital; 2. driving back to Vancouver and seeking medical attention there; 3. continuing on to Calgary. [ 53 ] The accused testified that he elected to go to Calgary. He put it this way: “ I chose to drive to Calgary. It’s a one line – a straight line from Salmon Arm where I don’t have to turn. I just have to hold the steering wheel straight, so that’s what I did. ” (transcript, March 22, 2023 at p 16) [ 54 ] The accused arrived at SY’s house and sought medical attention.

He discovered that his injuries were more serious than he first thought. The most serious injury was a radial head fracture of the left elbow. He also had a minor chest contusion and injuries and cuts to his right hand. The accused said SY treated him with ice when he first arrived. He also said that she drove him to an urgent care medical facility two days later on the morning of November 10 th . [ 55 ] The accused produced a digital photograph of the original injury from the Salmon Arm hotel (exhibit 8).

He also produced a medical diagnostics report (exhibit 9), which he said he was provided after his urgent care visit. The accused later said his injuries became disabling. He agreed he could not drive a car or sleep lying down. He agreed he spent the majority of his time in a chair in SY’s kitchen. [ 56 ] The accused described RL as being in school for much of this third visit. While this period coincided with the COVID-19 pandemic, he said RL’s school was in-person and not done online. [ 57 ] The accused conceded that his relationship with RL was strained during the November – December visit.

For the first few days of the visit, he slept upright in the kitchen chair. He eventually returned to sleeping in SY’s bedroom when his condition allowed. [ 58 ] The accused recalled other events happening during the third visit. He recalled that SY was dealing with some legal matters such as a parenting order progressing through the courts and a potential bankruptcy application. He also recalled encouraging SY to apply for a new position with Alberta Health Services in the period before the Christmas holidays. [ 59 ] The accused said he eventually started to recover.

He felt well enough to help SY cut down a Christmas tree. After

completing this task, without too much difficulty, the accused said he once again felt capable of operating his vehicle. The accused said while he knew SY wanted him to stay over the Christmas holidays, he felt obligated to return to his business affairs. Additionally, the accused said the tense relationship between himself and RL contributed to his decision to leave. Finally, the accused said he was intent on engaging in physiotherapy for his injury, which would be organized in Vancouver. [ 60 ] The accused denied any sexual abuse of RL during this visit or going to her bedroom.

He also denied being injured by RL. [ 61 ] The accused agreed that he and SY discussed a potential fourth visit. He agreed that he probed SY about whether RL would consent to another visit. He said he did this because RL seemed irritated with him during the November/December visit. [ 62 ] The accused’s cross-examination focused on some peculiar oddities in his narrative of the events. These included his description of how he met SY, whether he revealed his name to her, and his opportunity to commit the alleged offences. The accused repeatedly denied any involvement in the offences before the Court.

He also further explained his evidence-in-chief. [ 63 ] The accused maintained that neither he nor SY exchanged their true names until their first in-person meeting. However, he allowed that they had spent approximately five to eight hours speaking with SY on the phone before that meeting. The accused insisted that he told SY his actual name at their first meeting as well as the name “Guy.” He also confirmed that the use of the name “Josh” was SY’s idea.

The accused said that he reluctantly agreed to be called this “nickname” for months because SY was embarrassed at the thought of reintroducing him to RL under his actual name. He also denied ever using the name “Lawson.” He admitted to the use of the name “Josh” only for the purpose of the dating app profile. He refuted the suggestion that he ever tried to hide his true identity, especially for the purpose of evading detection for abusing RL. The accused maintained that SY never told him about RL in the pre- meeting phone discussions. [ 64 ] The accused denied that RL scratched him.

He also denied trying to tempt her with a new iPhone. He only agreed to being aware that RL wanted a phone and admired his phone. [ 65 ] The accused denied telling SY that he did not want to be photographed. While he agreed that a private photograph was once sent to his mother without his consent, he insisted SY never asked him to be in any “family” photos with her or RL. In fact he indicated he had sent photos of himself to SY via text message.

He assumed she was still in possession of these. [ 66 ] The accused further explained his direct evidence on why he chose to drive to Calgary after receiving the injury in Salmon Arm BC. He agreed that the roadway between those two destinations does indeed have many curves and corners. He conceded he needed to steer his vehicle during the drive.

However, he explained that what he meant is that there is only one highway to navigate (Highway 1) and leaving that roadway was not necessary to reach his destination. [ 67 ] He added that his previous experience with injury is that the full severity of swelling, and accompanying pain, are often not experienced until the following days. He explained that his Salmon Arm injury took exactly that course. He said it left him able to drive immediately after the incident, but much more disabled the day after it happened.

This is why he did not leave SY’s residence for many days after he arrived. [ 68 ] The accused said he was always involved in walking SY’s dog alongside SY during the first two visits. He therefore denied being in a position to abuse RL when SY walked the dog on those vists. However, he did agree that his injuries prevented him from walking with SY on the third visit. He conceded he was alone in the home with RL on those occasions, for approximately five to ten times. [ 69 ] Like SY, the accused sometimes presented as an argumentative witness.

On one occasion at least, he needed to be instructed to respond to the questions put to him. Legal Framework 1. General Principles [ 70 ] There are some very basic principles of Canadian Criminal Law which apply to this and every trial. [ 71 ] First, pursuant to s 11(

d) of the Canadian Charter of Rights and Freedoms , and our long legal traditions, the accused is presumed to be innocent. The Crown has the burden of proving the guilt of the accused beyond a reasonable doubt. To achieve this, the Crown must prove each and every element of the offence beyond a reasonable doubt. This burden never shifts. It remains constantly with the Crown. There is no obligation on the accused to prove his innocence or even to testify in his own defence. [ 72 ] What is meant by the phrase “proof beyond a reasonable doubt?” This question has received much attention.

However, the views expressed by the Supreme Court of Canada in R v Lifchus still prevail. I take those principles, carefully set out by our Supreme Court, to be as follows: 1. The concepts of proof beyond a reasonable doubt and the presumption of innocence are inextricably intertwined. They are fundamental to our system of justice. A fair trial cannot exist without them. 2. “Reasonable doubt” cannot be based on sympathy or prejudice. Rather, the concept is grounded upon reason and common sense. It is logically connected to the evidence, or absence of evidence, in a particular case. 3.

It is not necessary to satisfy this standard by proving the guilt of the accused to an absolute certainty, or to prove the guilt of

the accused beyond any doubt whatsoever. Such a standard of proof is impossibly high. Further, a reasonable doubt is not one which isimaginary or frivolous in nature. 4. Finally, it is insufficient to prove that an accused is “probably guilty” or “likely guilty”. If I find that the accused is only“probably guilty” then I must conclude that the requirement for proof beyond a reasonable doubt has not been achieved. An acquittalmust be the inevitable result in such situations. R v Lifchus (SCC), [1997] 3 SCR 320 2. Credibility and Reliability [73] Credibility and reliability are separate and distinct concepts.

Both affect the concept of reasonable doubt. Credibility refers to awitness’s veracity. Reliability refers to a witness’s accuracy. Reliability and accuracy depend on a witness’s ability to observe, recall andrecount the events properly. A credible witness may nevertheless be inaccurate, or unreliable. The honest but mistaken witness is aparticularly worrisome example and very difficult for triers of fact to deal with. A witness must be both credible and reliable to bebelieved. [74] There is an established procedure for assessing credibility and reliability in the context of a trial.

This procedure was firstoutlined by the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742. Several subsequent cases (such as R vAy, (1994) (BC CA), 93 CCC (3d) 456 (BCCA), and R v CWH, (BCCA)), have served to furtherexplain and refine the procedure. [75] This process must first start with an assessment of the credibility and reliability of the accused’s evidence. However, the courtshould not engage in a formulaic approach. [76] I am also informed on this principle by the recent decision of the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36.

I willnow set out this procedure, paraphrased, as follows: (

i) If the evidence of the accused is believed, the accused must be acquitted. (ii) Even if the evidence of the accused is not believed, if it raises a reasonable doubt, the crown has not met its burden and theaccused must be acquitted. (iii) If the court is uncertain of whether to believe the evidence of the accused or the complainant, the accused must be acquitted. (

i) Finally, even if the evidence of the accused is rejected, or even if it fails to raise a reasonable doubt, the court must still askitself whether, on the basis of the evidence which it does accept, the crown has proven each and every element of the offence beyond areasonable doubt. If it has, the accused must be convicted. If it has not, the accused must be acquitted. [77] Additionally, special considerations are appropriate when assessing the credibility of child witnesses. Courts must carefullyassess the credibility of child witnesses, like all those who testify.

However, allowances may be made when assessing apparentcontradictions, especially where those contradictions concern peripheral details not essential to the substantive allegations (R v B(G), (SCC), [1990] 2 SCR 30, R v W(R), (SCC), [1992] 2 SCR 122, R v MJM, 2019 ABQB 497). Detailssuch as dates, times or other peripheral matters are not always the point of focus for child witnesses.

Mistakes, inconsistencies or evenembellishments by child witnesses about such details do not necessarily mean children have misunderstood or misrepresented thesubstantive allegations that have brought them before the court. [78] Finally, on the subject of credibility and reliability, it is well established that a trier of fact (be it a Judge or a Jury), mayselectively consider evidence from each witness. A trier of fact may accept all, some, or none of the evidence of each witness. Anindividual witness may be believed regarding one aspect of their testimony, but not about other parts.

It is possible that all of a witness’sevidence might be believed, or absolutely none of it. 3. Elements of the Offences of Sexual Assault and Sexual Interference [79] I will set out the standard description of sexual assault and sexual interference, as interpreted by our courts. However, wherethere are allegations of sexual offences against a minor only some of that

interpretation is relevant. It is important to observe that thewell-established components of actus reus and mens rea, for the offence of sexual assault, come from the traditional analysis of thatoffence as it relates to situations where consent is legally possible. This includes situations where the parties are both adults, consciousand theoretically capable of legal consent. [80] The allegations in this case involve sexual offences committed against a person under the age of 16.

Legal consent is thereforenot possible on the facts of this matter. [81] I will address this issue in more detail in the following paragraphs. However, I will also set out the traditional legal frameworkfor sexual offences, for completeness, with the understanding that those portions on the subject of consent are not applicable on the factsbefore me.

a) Sexual Assault, s 271 The actus reus of the offence of sexual assault is established by three elements:

(

i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. (R v Ewanchuk, 1999 SCC 711 at par. 25) [82] The first two elements are objective.

The third element is subjective. (R v Ewanchuk, supra) [83] Where consent is legally possible, “consent,” in the context of the actus reus, is determined by reference to the subjectivestate of mind of the complainant, at the time the touching occurs. [84] The mens rea of the offence is established when it is proven that the offender intentionally touched the complainant, and didso knowing that there was an absence of consent, being willfully blind to the absence of consent, or under conditions where consent isnot legally possible (R v Ewanchuk, supra at paras. 41-42, R v A(J), supra at paras. 23-24).

At this stage, the analysis is focused on theintentions of the accused. [85] Sexual assault is a crime of general intent. [86] The burden is on the Crown to prove each of the essential elements of the offence beyond a reasonable doubt. The Sexual Nature of the Contact (Actus Reus) [87] The sexual nature of the contact is established through an objective analysis. It is not required that there be proof of aparticular state of mind on behalf of the accused.

The standard to be applied has been stated by the Supreme Court in a number of casesincluding R v Litchfield, (SCC), [1993] 4 SCR 333 and R v Chase, (SCC), [1987] 2 SCR 293. In R vChase, the Supreme court defined the sexual nature of contact as follows: “Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault within anyone of the

definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such thatthe sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexualnature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to areasonable observer” (Taylor, supra, per Laycraft C.J.A., at p. 269).

The part of the body touched, the nature of the contact, thesituation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct,including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, “A New Crime in Old Battles:Definitional Problems with Sexual Assault” (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing theact, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual.

If the motiveof the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether theconduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, theimportance of which will vary depending on the circumstances.” (R v Chase, supra, at para 11) Consent Not Possible [88] As previously mentioned the complainant in this matter was under the age of 16 and was legally incapable of consenting toany sexual activity.

Pursuant to the provisions of s 150.1 of the Code, no person under the age of 16 is capable of consenting to sexualactivity. Accordingly, this is an element the Crown need not prove.

b) Sexual Interference, s 151 [89] Any person who intends sexual interaction with a child and makes contact with the body of the child with that intent, commitsthe offence of sexual interference. The offence can be committed by touching a child’s body directly or indirectly. The touching can bethrough the body of the accused, or with an object. As with the offence of sexual assault, consent is not possible. [90] The actus reus of sexual interference is; (

a) a touching (

b) of a person under the age of 16. The mens rea is an intention totouch and a sexual purpose (see R v Menjivar, 2010 ABPC 164 at paras 21-24, citing Sexual Offences in Canadian Law by Hamish C.Stewart (Canada Law Book, Aurora, 2009) at 4:200.10 (pp 4-2.1)). [91] The Alberta Court of Appeal explained how courts are to determine when touching is done for a sexual purpose as follows inthe decision R v Morrisey, 2011 ABCA 150 at para 21: [21] Touching is done for a sexual purpose, if it is done for one’s sexual gratification or to violate a person’s sexual integrity.

Indetermining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can, in assessing themens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer.

The “sexualpurpose” may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touchingitself (i.e. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that theaccused committed the touching for a sexual purpose). (see para 24 of R v Menjivar,

(2010) AJ No 610, 2010 ABPC 164). Conclusion on the Elements of the Sexual Offences

[ 92 ] The elements for the offence of sexual assault are distinct from those of sexual interference. Sexual assault is a general intent offence, and the sexual nature of the touching is determined objectively. Sexual interference is a specific intent offence. That specific intent offence requires the Crown to establish beyond a reasonable doubt that the accused intended the offending conduct and engaged in those actions for a sexual purpose.

However, as our Court of Appeal notes in Morrisey above, the “ sexual purpose ” may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself.

Accordingly, the previous analysis regarding the sexual nature of the contact, identified in Litchfield and Chase ( supra ), and the factors identified therein (such as the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances), remains relevant in assessing whether the only reasonable inference to be drawn is that the accused committed the touching for a sexual purpose. Analysis [ 93 ] Proof of the allegations before the court is wholly dependent on the credibility of RL, SY and the accused.

There is little in the way of objective, independent evidence to assist with this task. Assessing the accuracy and reliability of these witnesses, who have given vastly different accounts of the key events, has not been easy. I have concluded that the accused, while not a perfect witness, has at least raised a reasonable doubt about whether the offences were committed. [ 94 ] The accused’s denial of the allegations was firm. I find I cannot discount those denials.

While his cross-examined evidence, and even his evidence-in-chief, sometimes revealed an unusual narrative, it would be unfair to describe it as defying common sense. Nor can it be concluded that portions of the accused’s evidence necessarily pointed exclusively to guilt if that evidence was inaccurate or untruthful. [ 95 ] The main frailty associated with the accused’s narrative surrounded the development of the relationship with SY, especially the use of profile names between the accused and SY for the purposes of their interactions on the dating app.

At first glance it seems strange or absurd to communicate with a potential partner, for so long, without confiding one’s identity. Perhaps most people would not continue using their profile name once contact was reduced to those human interactions occurring away from the dating service, for example, phone calls.

Even if I accept the accused’s estimate of a few hours of phone conversations between he and SY before they met in person, it seems reasonable that most people would move past the original usernames when engaging in normal phone contact. [ 96 ] Having said that, I accept the practice, acknowledged by both SY and the accused, of relying on usernames to protect one from identity theft or other nefarious intentions by those accessing these dating sites. [ 97 ] I further accept the accused’s rational concern that he did not want to be exposed to identity theft.

I also accept the accused and SY’s common experience that app users often behave cautiously in revealing their true identities. Given the realities of dating in a digital world, the desire to wait until a personal meeting to reveal one’s true identity does not seem unreasonable. Nor would it be unreasonable to conceal other aspects of one’s life, perhaps even basic familial details, until enough trust has been displayed to engage in a personal meeting. I cannot conclude that the accused’s evidence about delaying giving his true name, until the first personal meeting with SY, is unreasonable.

Nor can I conclude he is untruthful about first learning of RL’s existence only at this meeting. [ 98 ] The accused’s account of how he came to adopt the nickname “Josh” after he met RL is also problematic. Having said that, I have been unable to factually determine whether the accused revealed his true name to SY or whether SY was indeed embarrassed about appearing to have lied to RL about how she met the accused.

It is entirely possible that she did not want to explain the situation further. [ 99 ] I do accept the common evidence that the accused was first introduced to RL as… “Josh, my friend from university” . These words, or words similar, were confirmed both by RL and SY in their evidence. It is possible, with the sporadic contact SY and RL had with the accused, that a further explanation may never have been given. I find that I have a doubt about this. I must resolve this point in the accused’s favour.

I also find support for this point in the evidence that neither RL nor SY were careful about the details of the accused’s last name. The surnames “Lawler” or “Lawson” were both put in evidence as possibilities for the accused’s last name. The true facts of what names were revealed or resorted to may never be capable of determination. The long periods of time between contact, and the apparently casual nature of the relationship, may explain the lack of precision in this regard.

In any event, the evidence does not permit me to draw an inference that the accused was deliberately untruthful about revealing his name. [ 100 ] Finally, it does not necessarily follow that failing to properly reveal his identity, demonstrated a nefarious intention on the part of the accused, including a plan to commit the alleged offences and later avoid detection. Linking a reluctance to reveal some personal details, with the singular purpose of eventually aiding the commission of these alleged offences, is not supported on the facts before me.

There might be many legitimate reasons for a person to protect personal information. It would be unjust to attribute the worst possible motives to the accused without tangible evidence of those motives. [ 101 ] Another apparent frailty concerns the accused’s evidence about why he chose to drive to Calgary, immediately following the Salmon Arm injury. This aspect of his evidence seems to invite suspicion. His reasoning that the path of travel was a “straight line from Salmon Arm where I don’t have to turn...” is admittedly bizarre. Maps reveal that Salmon Arm is almost equi-distant from both Calgary and Vancouver.

Each journey takes about five hours to complete in a vehicle. Neither journey is more direct than the other. I take judicial notice of the fact that both paths would contain many curves in the roadway requiring significant steering input. To suggest that either route is easier to navigate with an injury, or less complicated than it’s rival, is unfounded. Furthermore, if pain or discomfort were truly the issue, remaining in Salmon Arm would offer the best solution for timely medical attention.

However, I do accept the accused’s clarification that his suffering increased in the days following sustaining the injuries. Human experience demonstrates that swelling,

pain, and discomfort often increase in the period after injury. I accept that the accused’s original plan was to proceed to Calgary. I accept his evidence that he felt well enough to operate his vehicle directly after the injury and pursue that original objective. I further accept his account of how the disability from his injury increased in the days following, such that he could no longer drive.

His account of realizing he could function in a vehicle, following cutting down a small tree, is likewise reasonable. [ 102 ] The Crown argued that the accused’s account of not entering RL’s bedroom was unreasonable and false. In particular, the Crown pointed to evidence that RL’s bedroom was across the hall, and on the same floor as SY’s bedroom, where the accused spent significant time. It was suggested that it defied common sense to assert that the accused would not enter RL’s room under these conditions. I cannot agree. The accused’s denials of entering RL’s room were clear.

The proximity of RLs room does not automatically establish the falsity of the accused’s evidence or make it inevitable that he would enter her room. [ 103 ] After considering the most prominent apparent frailties in the accused’s account, I find that much of his evidence was clear and forthright. Moreover, there were external factors which pointed to his accuracy. These include the photographs in exhibit 7, which support his narrative about the timing of the first visit, and the locations he testified going to.

These demonstrate certain other details, such as the trip to Bragg Creek on March 1, 2020. [ 104 ] In this respect I prefer the accused’s evidence to that of either SY or RL regarding the history of the February/March 2020 visit and the activities engaged in. I appreciate that these details may seem tangential to the core allegations. However they contribute to the accuracy of the accused’s evidence, and do nothing to demonstrate that he was unreliable or untruthful. [ 105 ] Finally, like SY, the accused was occasionally combative. Both the accused and SY had to be directed to answer some questions put to them.

As I indicated earlier, I did not find the accused’s evidence to be perfect. However, I am satisfied that he ultimately cooperated, within the context of a thorough and probing direct and cross-examination, and fulfilled his obligations as a witness. Perhaps it is natural that a certain amount of defensiveness or argumentative conduct accompanies being questioned, especially regarding serious criminal allegations.

I cannot say that the accused’s behavior as a witness was egregious or indicative of a broader motive to mislead the court. [ 106 ] The accused also demonstrated a willingness to concede fair suggestions put to him and did so in a logical and consistent way. For example, he fairly acknowledged that he did not help to walk the dog during the third visit, because of his injuries. He agreed he had opportunity to be alone with RL during several occasions during that visit because of this.

I find that his denials of the main allegations were not representative of a motive to blanket the court with unfounded dismissals of any evidence that might implicate him. [ 107 ] Much of the accused’s evidence was corroborated, in some form by either RL or SY, or both. For example, the accused’s evidence about his introduction to RL in in the living room of SY’s home, with the name “ Josh ” and him being a friend from university. RL confirmed the accused’s evidence that she yelled at their bedroom door (transcript, March 20, 2023 at p 46). I accept that account, even if SY could no longer remember it.

RL also confirmed the accused’s evidence that SY was engaged in court appearances (transcript, March 20, 2023 at p 36). Once again I accept that this happened, even if SY did not acknowledge this. [ 108 ] I acknowledge the accused’s frailties, discussed previously, the strange nature of his narrative and his peculiar and sometimes difficult courtroom demeanor. Nevertheless, his evidence was detailed, cogent and frequently corroborated.

I cannot disregard his clear and unequivocal denials regarding the alleged offences on the basis of the evidence before the Court. [ 109 ] For all the reasons above, I conclude that the accused’s evidence has at least established a reasonable doubt about whether he committed the alleged offences. Accordingly, I conclude that the Crown has not proven the allegations before the court beyond a reasonable doubt. As a doubt has been established on a review of the accused’s evidence I do not find it necessary to comment on the evidence of the Crown.

Conclusion [ 110 ] For the reasons given above I find the accused not guilty of the offences of sexual assault and sexual interference (count 1 and 2). [ 111 ] The accused was also originally charged with one count of sexual touching, contrary to s152 of the Code (Count 3). At the conclusion of the evidence the Crown conceded that there was insufficient evidence to support this charge and invited the court to dismiss the charge. I agree. Accordingly, I have not included this count in the preceding analysis. I find him not guilty of count 3. Dated at the City of Calgary, Alberta this 8 th day of August, 2023.

L.W. Robertson A Justice of the Alberta Court of Justice Appearances: G. Argento for the Crown M. Duckett for the Accused