R v Hlusiak, 2023 ABCJ 204

In the Alberta Court of Justice Citation: R v Hlusiak, 2023 ABCJ 204 Date: 20230918 Docket: 230094609P1 Registry: Calgary Between: His Majesty the King - and - Allan Brian Hlusiak Restriction on Publication Identification Ban – See the Criminal Code of Canada ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Judgment of the Honourable Justice I.L. Maharaj Introduction [ 1 ] I confirm that there is a publication ban with respect to this matter pursuant to

section 486.4 of the Criminal Code of Canada which prohibits the publication of the Complainant’s identity. Therefore, for the purposes of these reasons, I will refer to the accused, Allan Brian Hlusiak, as the Accused or Mr. Hlusiak and to the complainant, simply as the Complainant. Overview [ 2 ] The Accused is charged on a single-count Information of sexual assault contrary to

Section 271 of the Criminal Code of Canada . The Information reads as follows: Allan Brian Hlusiak (DOB 1980-06-25) of 15 Everglade Dr. SE, Airdrie, AB On or about the 12 th day of November, 2022, at or near Calgary, Alberta, did unlawfully commit a sexual assault upon [the

Complainant], contrary to

Section 271 of the Criminal Code of Canada. [3] It is alleged, more particularly, that the Accused kissed the Complainant twice, without her consent, and that he touched herbreasts, under her clothing, also without her consent. The incidents are alleged to have occurred within a very brief period of time and aspart of a single interaction and, thus, only one count of sexual assault is alleged by the Crown. However, for clarity, I will address thealleged incidents separately, as there was a break in time and place between them.

Legal Framework The Burden of Proof [4] It is important to reiterate that in a criminal trial in Canada, an accused is presumed innocent until proven guilty. Thisfundamental principle is enshrined in

section 11(

d) of the Canadian Charter of Rights and Freedoms. The Crown must prove the guilt ofan accused beyond a reasonable doubt. This burden, which applies to each and every essential element of an alleged criminal offence,remains upon the Crown throughout the trial. [5] A reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lackof evidence. This threshold falls much closer to absolute certainty than to proof on a balance of probabilities.

An accused who isdetermined to be probably guilty must be acquitted: R v Starr at para. 242; R v Lifchus, [1997] CanLII 319 (SCC) at paras. 30-39, and Rv W(D) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). [6] Stated otherwise, as set out in R v. DAW, 2018 ABPC 254, para 12, a reasonable doubt must be: 1. Based upon reason and common sense, and is not a doubt base on sympathy or prejudice; 2. Is logically connected to the evidence or absence of evidence; 3. Does not involve proof to an absolute certainty, is not proof beyond any doubt, nor is it an imaginary or frivolous doubt; and 4.

More is required than proof that the accused is probably guilty. Elements of the Offence of Sexual Assault [7] In order for a conviction to result, the Crown must prove, beyond a reasonable doubt, each and every essential element of thealleged offence. Simply put, there are five elements that must be addressed in order for a conviction of sexual assault to result: The three actus reus elements: 1. Touching 2. Sexual nature of the contact 3. Absence of consent The two mens rea elements: 1. Intention to touch 2.

Knowledge, recklessness, or wilful blindness about lack of consent [8] As set out in R v Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at paragraphs 25 and 42, and R v Barton, 2019SCC 33 at para. 87, all of the foregoing elements must be proven by the Crown, beyond a reasonable doubt, for a finding of guilt toresult.

Summary of the Facts Undisputed Facts [9] The majority of the facts are either not disputed or not material. For expediency, I will summarize them briefly below. [10] Foundation elements that are not in dispute are: (

a) the identity of Mr. Hlusiak as the Accused; (

b) the identity of the Complainant as the Complainant; (

c) that the alleged actions took place in Calgary, Alberta; and

(

d) that the alleged actions took place on November 12, 2022, the offence date, in the early hours of the morning. [ 11 ] The Complainant was employed as a server at Blondies Cabaret (a gentlemen’s club in Calgary, Alberta, which I will refer to as Blondies) until approximately May or June of 2022, at which point the Complainant ended her employment for reasons that are not material to this matter. During this time, Mr.

Hlusiak was also employed at Blondies as a bartender. [ 12 ] In the fall of 2022, the Complainant was seeking employment and contacted one of the owners at Sugar Showroom (a gentlemen’s club in Calgary, Alberta, which I will refer to as Sugar). In approximately November of 2022, after making several requests for employment, the Complainant was hired as a server at Sugar. Blondies and Sugar are related businesses and share some amount of common ownership. [ 13 ] On or about November 11 to November 12, 2022, the Complainant was working her shift at Sugar in the ordinary course.

Nothing unusual occurred during the shift. The Complainant’s shift was from opening (approximately 9:00 pm) on November 11, 2022, to closing (approximately 2:00 am) on November 12, 2022. It was not unusual for Mr. Hlusiak, who was the acting General Manager of Sugar in November of 2022, to have an alcoholic beverage with the staff after closing and before leaving for the night. On November 12, 2022, after the customers had left and before the staff left, Mr.

Hlusiak consumed an alcoholic drink with the Complainant and some of the other staff. [ 14 ] The Complainant was the last staff member to leave on November 12, 2022. Mr. Hlusiak and the Complainant had both parked their cars in the surface parking lot adjacent to Sugar. Mr. Hlusiak started his vehicle with the Command Start function, prior to leaving Sugar, to warm it up. The Complainant’s vehicle does not have Command Start. [ 15 ] The Complainant and Mr. Hlusiak walked to their parked cars together and had a brief conversation outside of both vehicles. Mr.

Hlusiak hugged the Complainant outside her vehicle, which hug was admitted by the Complainant to having been consensual. [ 16 ] Mr. Hlusiak invited the Complainant to sit in his vehicle while her vehicle warmed up. The Complainant returned to her vehicle, entered it, started her vehicle, and then returned to the front passenger side of Mr. Hlusiak’s vehicle and sat inside Mr. Hlusiak’s vehicle for a period of approximately five to 10 minutes. [ 17 ] While sitting in Mr. Hlusiak’s car, the Complainant and Mr. Hlusiak had a discussion that ranged over several topics including Mr.

Hlusiak’s recent marriage, the cancellation of a party at Sugar, some ideas for increasing business at Sugar, and a number of other topics that are inconsequential and not in dispute. [ 18 ] The Complainant departed from Mr. Hlusiak’s car, spoke to him briefly from outside the vehicle, and then closed the door to Mr. Hlusiak’s vehicle, walked to her vehicle, entered it, and closed the door. They both drove out of the parking lot, one after the other. [ 19 ] Approximately one week later, Mr. Hlusiak and the Complainant had a conversation unrelated to the alleged incident.

The conversation was about timing/payment of the evening’s receipts and tips. The Complainant ended her employment abruptly after that conversation on that day. [ 20 ] Approximately one week later, on December 1, 2022, the Complainant attended at the police station and provided the report that was the foundation of the Information laid against Mr. Hlusiak. Constable Didier Karimwabo provided information with respect to the circumstances surrounding the arrest of Mr. Hlusiak . The information provided by Constable Karimwabo was uncontroversial.

Matters in Dispute [ 21 ] The testimony of the Accused and the Complainant diverges with respect to the incidents that comprise the specifics of the allegations against the Accused. I have carefully reviewed the evidence presented, including the parking lot security footage, which was marked, by consent, as an Exhibit in the trial, where the vehicles of the Complainant and the Accused were parked and where the incidents are alleged to have occurred . Note that merely because I have not mentioned some aspect of the evidence or the arguments advanced does not mean that I have failed to consider it.

I have considered all of this evidence , along with all of the arguments advanced by the Crown and by counsel for Mr. Hlusiak, which were submitted to me in writing. Incident 1 – the alleged kiss outside the vehicles [ 22 ] According to the Complainant, before entering the Accused’s vehicle, the Accused hugged the Complainant.

The Complainant admits that the hug was consensual and that it was not unusual that the Accused would hug her, and the other servers, at the end of a shift. [1] The Complainant alleges that, at the end of the hug, the Accused attempted to kiss her on the lips but that she turned her head quickly “so he only got me on the cheek”. [2] [ 23 ] According to the Accused, he hugged the Complainant outside her vehicle, the hug was consensual, and he stated that it was not uncommon for him to hug the servers at the end of a shift before they left the workplace.

Incident 2 – the alleged touching of the Complainant’s breasts and alleged kiss inside the vehicle [ 24 ] According to the Complainant, upon entering into the Accused’s vehicle, she and the Accused had a conversation which lasted approximately five to 10 minutes. The Complainant alleges that, without seeking permission, the Accused reached over to push the

Complainant’s top open, exposing her left breast, which he touched and squeezed. She alleges when she tried to close her top, he reachedover to her right breast, touched it, and squeezed it, again without her permission. She alleges that the Accused then kissed her on herlips. She exited the Accused’s vehicle, stopped before closing the passenger door when he asked a question about a co-worker and aregular customer, gave a short response, closed the passenger door, walked to her vehicle, entered it, and closed the door.

Then, they bothdrove out of the parking lot. [25] According to the Accused, he and the Complainant had a conversation of approximately five minutes, but less than 10minutes in duration, in his vehicle while waiting for the Complainant’s vehicle to warm up. He stated that, at the end of the conversation,the Complainant exited his vehicle and that he asked her a question about a regular customer and a co-worker while she was standingbeside his vehicle. She gave a short answer and then she went to her vehicle. Then, they both drove out of the parking lot.

Evaluation of the Testimony Myths and Stereotypes in the Fact-Finding Process [26] Before I begin, I note that a trial judge must use common sense in their assessment of credibility and reliability. Particularlywhen the allegations are allegations of sexual assault, the assessment of credibility cannot include reliance upon myths and stereotypesand a trial judge must remain diligent and be aware of not making assumptions based on common myths and stereotypes: R v ARJD,2018 SCC 6 , [2018] 1 S.C.R. 218.

In dismissing the appeal, which was an appeal by the accused by right, the Supreme Court ofCanada said, at para 2: In considering the lack of evidence of the complainant’s avoidance of the appellant, the trial judge committed the very error he hadearlier in his reasons instructed himself against; he judged the complainant’s credibility based solely on the correspondence between herbehaviour and the expected behaviour of a stereotypical victim of sexual assault.

This constituted an error of law. [27] Reliance on impermissible generalizations, myths, or stereotypes about sexual behaviour in the credibility assessment ofeither an accused or a complainant is an error of law. Trial judges must ensure that their credibility assessments are grounded in theevidence and must not rely on assumptions about behaviour in the absence of evidence. [28] I have cautioned myself that I must not use speculative or stereotypical thinking in assessing credibility of either the Accusedor the Complainant.

I have further cautioned myself that any preconceived notions or assumptions about human sexuality have no placein the fact-finding process or the assessment of credibility or reliability in this matter. The Complainant’s Testimony [29] The Complainant’s testimony was direct and reasonably concise. She was clear in her recollection of certain events andforthright when she did not have a clear recollection. Incident 1 – the alleged kiss outside the vehicles. [30] In her testimony, the Complainant stated:[3] Q Okay. What happened after that?

A So we were just chatting for a few minutes, and then I had my keys in my hand. He was leaning up against his vehicle, and he – I waslooking down to grab my – with my keys. He walked up to hug me goodbye, which wasn’t unusual. And he held onto me, and I was kindof turn – I was loosening my embrace to end the hug, and he leaned in to kiss me. And I turned my face really quickly, so he only got meon the cheek. And then we hugged, and he said – I [meaning the Complainant] don’t have Command Start on my car, so he said that Ishould let my vehicle warm up and come into his vehicle.

And I specifically remember that evening that it wasn’t very cold because if itwas, we wouldn’t have been standing outside talking. [31] On cross-examination, the Complainant stated:[4] Q That’s Mr. Hlusiak’s head that you would say would be on your left? A Initially my – I’m standing here. My face, my head was here. His was on my right shoulder. Then when I released to end the hug, heleaned in, and I turned my head really quickly and put it over his shoulder. So our heads then switched. Q Okay. So the alleged attempt to kiss you was after the hug, not before? A During the hug. Q During the hug? A Yes. Q Okay.

So that wouldn’t be able to be seen here, correct? A No.[5]

[ 32 ] In my review of the parking lot security camera footage, it was clear that the Accused and the Complainant hugged. However, it was unclear that the Complainant turned her head to avoid being kissed by the Accused. There was no visible movement of the Accused’s head towards the Complainant’s face nor was there a perceivable reaction by the Complainant at the end of the hug. The parking lot security footage shows that, after the hug, the Accused got into his vehicle.

The Complainant went to her vehicle, got inside for a moment, got out of her vehicle, and then got into the Accused’s vehicle on the front passenger side. Incident 2 – the alleged touching of her breasts and alleged kiss inside the vehicle. [ 33 ] The Complainant candidly described the events that she stated comprised the non-consensual touching of her breasts.

She stated that she and the Accused were discussing a number of non-remarkable topics, including the Accused’s recent wedding, while they were seated in his vehicle waiting for her vehicle to warm up. [ 34 ] In examination-in-chief, the Complainant stated: [6] Q I see. Feel free to continue on from there as well. A So we were – I said – I mentioned: Hey, I should get going. My vehicle should be warm. I’ve got to go home, feed my dog, and let him out. Because I had been working all night.

And at that point he reached over – and I was wearing a black deep V-neck tank top, and it’s a compression top, so you don’t need to wear a bra with it. He reached over and pulled open the left side of my shirt and exposed my breast, and I – he grabbed it. I then tried pulling it shut, and he slid his hand across my chest underneath to my right breast. And I kind of pushed him away, leaned back, and said: You know, you just got married. This isn’t right. We shouldn’t be doing this. And then he leaned in to kiss me on the face, on the mouth, and I pushed him away, and I said, I need to go.

And I said – I said – I think I might have said it wrong, but it was – I said, A leopard never changes its spots. And he didn’t like that. Q Okay. A I then got out of the car, and he took off and drove off before I even got to my vehicle. And further, the Complainant was asked, in examination-in-chief: [7] Q Were there any verbal exchanges right before this happened or during? A No. It was nothing involving sexual conversation. It was – we were discussing the brain surgery of one of the owners. There was no mention or ask of: Can I touch you? Do you want me to touch you? Nothing.

Q How long would you estimate that contact with your breast being? A He grabbed it, and then I tried pulling it shut, and he grabbed my other one. So, like, maybe 3 to 5 seconds that that all happened by the time I pulled it closed. Q And at this point did you say anything to him or did he say anything to you? A I said: We shouldn’t be doing this. Like, you just got married. Like, this is not okay. But I really have to go home to let my dog out and take him on a walk. That’s what I, like, kept saying to him. And he said, some – he said – he just went: Oh, come on, Rach. Come on Rach. And I said, No.

And then he proceeded to lean over and try to kiss me, and I believe he actually – his lips did touch mine. Q How long would you estimate that that – from the exposing of your breast to you getting out of the vehicle: How long was that? A Maybe a minute. I remember as I was opening the door and getting out, he asked me something. So I stood outside the vehicle for a moment and chatted. Q Do you remember what he asked you? A He had asked me about a customer, a regular of ours, and a bartender at Blondies and said, Do you know what’s going on between them, the two? Q Did you answer the question?

A I said, Yes; you would have to ask her. Q Okay. And at that point I take it you went into your own vehicle – A Yeah. Q – and you described that Allan drove away before you got into your car? A Yeah. The Accused’s Testimony

[ 35 ] The Accused’s testimony was also forthright and clear. He did not attempt to evade questions with respect to his conduct during the evening or with respect to some of his ordinary practices when dealing with customers and staff. For example, he did not equivocate with respect to the fact that he consumed two or three alcoholic drinks during the evening in question, that he had an alcoholic beverage with his staff before leaving work on a regular basis, and that it is not unusual for him to hug staff members good night.

Incident 1 – the attempted kiss outside the vehicle. [ 36 ] The Accused stated that “we did have a hug outside the vehicle, and after that, that is when [the Complainant] decided to sit in my car, because it was chilly, to just let hers warm up for a little bit. So we got into the vehicle [referring to the Accused’s vehicle].” [8] [ 37 ] The Accused stated, on examination-in-chief [9] : Q Now, I’m going to ask you to take me through your recollection of the events from when you locked up until you entered your vehicle.

A We briefly had a conversation outside the front doors, and then we proceeded to walk – yes, to my side of the vehicle, which would have been in between her vehicle and my side. … And I had offered, like I usually do, [The Complainant] to warm up in the vehicle. At the same time I’d noticed there were two gentlemen, two or three gentlemen across the alleyway that must have been hanging out from another bar. So I just gave her the – the opportunity to – to stay in the vehicle. We chatted outside. She did go inside and – and start her car. And I got into my vehicle.

She came in in [sic] the passenger side, and we sat in the vehicle for – it was less than 10 minutes, I would say, probably 5 minutes, give or take. … Q Did you hug the individual at any point in time? A Yes. … [ 38 ] The Crown did not ask the Accused any questions with respect to the actions that form the basis of the alleged incidents of sexual assault described as Incident 1, being the alleged kiss at the end of the consensual hug.

Incident 2 – the alleged touching of the Complainant’s breasts and alleged kiss inside the vehicle. [ 39 ] The Accused reiterated the conversation that he and the Complainant had in his vehicle. [ 40 ] The Accused provided his narrative account of the actions that occurred while he and the Complainant sat in his vehicle and when she left it. He stated: [10] Mr.

Sangha: You can give your full narrative, and then we can go back. … A Yes, we – we did have a hug outside the vehicle, and after that, that is when [the Complainant] decided to sit in my car, because it was chilly, to just let hers warm up for a little bit. So, we got into the vehicle. We did discuss my wife and I just getting married. We discussed – we talked about my daughter a little bit. We discussed that night. We had discussed Ewan being not there anymore and the party that we did have booked at Sugar. The party did go to Blondies and celebrate there instead of our venue.

And we had talked, yes, how to – how to become busier, how to make the bar busier. After the conversation was over, I – I did show her some pictures on my phone about the wedding. And the conversation was good. We had left – she had left the vehicle, closed the door. We continued to discuss another question I had asked her in regards to a staff member. That was very – just pertinent to the actual business itself. I was trying to get to the bottom of things, just trying to help the business, and [the Complainant] just kind of more or less declined to tell me what happened.

And then she – she exited, got into her car. Once I saw her in her car, I took off, and then she had taken off within seconds right after me. [ 41 ] On examination-in-chief, he stated that the “conversation was good” [11] and, under cross-examination, when asked whether there was “no sort of hostility between the two of you”, he responded “That’s completely fair, yeah”. [12] [ 42 ] The Accused confirmed that he departed the parking lot first. He stated: [13] Q: Okay. But you agree that you drove off before she drove off? A: Yeah. Yeah, the video shows that. Yeah. Q: Okay.

And she left not immediately after you but –

A: Within 10 seconds, 15 seconds maybe. I’m – it was right after I – I thought. Q: Okay.

A: Because I’d seen headlights behind me as I was turning left out of the alley. [ 43 ] The Crown cross-examined the Accused on the following topics: • the relationship between the Complainant and Accused, as employee and general manager; • the role of the general manager in assigning tasks to the staff including the Complainant generally; • whether there were two gentlemen standing in the alleyway when the Complainant and the Accused left Sugar to go to their cars in the parking lot; • the conversation about personal safety that was alleged and not disputed between the Accused and the staff, including the Complainant; • the Complainant’s demeanor when she left the Accused’s vehicle to enter her warmed-up vehicle; and • the incident approximately one week later that led to the Complainant terminating her employment at Sugar abruptly. [ 44 ] The Accused was not asked whether he touched the Complainant’s breasts, either with or without her consent, on cross- examination nor was he asked whether he kissed the Complainant, either with or without her consent, while they were both seated in his vehicle.

The Accused did not volunteer any other information with respect to this allegation. Analysis [ 45 ] A trial judge can believe some, none, or all of a witness’s evidence. When a court does not know whether to believe an accused person’s evidence, an acquittal must result: R v JHS 2008 SCC 30 at paras 11 – 12 ; R v Siloci , [2017] AJ No. 533 at para 46 . [ 46 ] The Crown submits that it has proven the three actus reus elements and the two mens rea elements of the alleged sexual assault, beyond a reasonable doubt.

The Crown submits that it has proven that: 1. the Accused touched the Complainant; 2. the touching was sexual in nature; 3. the Complainant did not consent to the touching; 4. the Accused intended to touch the Complainant; and 5. the Accused was knowingly, recklessly, or wilfully blind to the lack of consent by the Complainant. [ 47 ] The Crown has alleged that there is no material inconsistency between the evidence tendered by the Crown and that of the Accused and, therefore, the Accused ought to be found guilty of the offence of sexual assault. [ 48 ] The offences of assault (section 265) and sexual assault (section 271), are described in the Criminal Code of Canada as follows: 265.

(1) Assault - A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) Application - This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. 271. Sexual assault – Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years ... (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months ... Is the Accused’s silence tantamount to an admission?

[ 49 ] The Crown relies upon the assertion that the Accused has not denied the allegations against him nor, in the Crown’s submission, has he introduced evidence that speaks to a defence. Therefore, the Crown first argues that an R v W(

D) analysis is not required as the Crown’s evidence is uncontradicted and that a finding of guilt must follow. [ 50 ] With respect to the Crown’s argument that there are no material inconsistencies between the evidence of the Complainant and that of the Accused, the Crown relies on the fact that the Accused did not specifically, in his evidence, deny the allegations against him or denounce the evidence tendered by the Complainant. [ 51 ] The Crown argues that “the only notable differences [in the evidence of the Complainant and the Accused] being sexual contact described by the Complainant, which the Accused is silent on when given a chance to provide his version of events”. [14] Further, the Crown states that “no suggestion was made by Defence to either the Complainant or any other witness that the Complainant was fabricating her evidence, and no inconsistencies arose at any point to bring her credibility and reliability into question”. [15] [ 52 ] The Defence argues that “the Accused was never cross-examined as to the events of the evening in regards to the allegations, and the Crown had ample opportunity to test his credibility in regards to the allegation events, however the Crown did not material time question beyond exculpatory evidence the [sic], such as the Accused recollection of individuals and security discussions on the evening of November 12, 2022”. [16] [ 53 ] Similarly, the Defence did not put to the Complainant the question that her recollection of events might be inaccurate or mistaken or propose a different version of events to her, save and except for the implication that the actions did not occur at all. [ 54 ] The Accused was asked to provide his narrative account of all of the events that occurred between himself and the Complainant with respect to the alleged incidents.

He did so, and his account was unchallenged by the Crown on cross-examination. The Crown argues that the Accused ought to have explicitly denied the allegations against him or, impliedly, he has admitted them by not contesting the Complainant’s account. [ 55 ] Common sense would suggest that it is reasonable to consider the Accused’s plea of Not Guilty to be a denial of all of the allegations made against him.

In this case, the Crown did not challenge the Accused with respect to his account of the events surrounding Incident 1 or Incident 2 and relies upon the lack of specific denial to assert that the Accused’s “silence ... when given a chance to provide his version of events” implies an admission of the Complainant’s version. [ 56 ] As a matter of law, the Accused is not obliged to answer questions that are not put to him by either his counsel or the Crown.

The Accused does not bear the onus of creating an exculpatory record or tendering evidence of a legal defence: R v SMC, 2020 ABCA 19 at para 24 , citing R v Ryon , 2019 ABCA 36 , para 51 , 371 C.C.C. (3d) 225 . The Crown must prove its case based on the evidence that is called, including the evidence that could have been elicited by the Crown on cross-examination of the Accused, who chose to testify.

To do otherwise, is to shift the burden of proof from the Crown to the defence. [ 57 ] Accordingly, I find as a fact that the Accused’s account of the events that occurred with respect to Incident 1 and Incident 2 is his evidence of the totality of the events that occurred between himself and the Complainant at the time in question, implicitly contradicting the Complainant’s evidence in that regard.

The Crown may have assumed that the Accused would spontaneously deny the account of Complainant but cannot, in the absence of putting the question to him, rely upon his lack of specific answer as an admission of the Complainant’s version of events. As a matter of law, the Crown is wrong in its conclusion that it may rely upon silence as an admission.

Critical issue – was there a touching? [ 58 ] The critical issue in this case, and the one where the testimony of the Accused and the Complainant diverge, is whether a touching occurred. [ 59 ] Specifically, with respect to Incident 1 – did the Accused touch the Complainant with his lips?

The hug has been admitted to having been consensual and, therefore, I will not address that occurrence of touching. [ 60 ] Further, with respect to Incident 2 – did the Accused touch the Complainant’s breasts, with his hand, and did he touch the Complainant with his lips. [ 61 ] If I find that the Crown has not proven, beyond a reasonable doubt, that a touching occurred in either Incident, then the analysis stops there. If there is no touching, then the alleged touching cannot be of a sexual nature nor can consent be in question.

If the actus reus did not occur, then the mens rea elements do not need to be addressed. [ 62 ] In the case at bar, I am faced with two versions of the material events in question, which versions appear to be materially opposed to each other. With the primary issues in this case being credibility and reliability, I have considered the application of the test set out in R v W(D) , as further interpreted in the Alberta Court of Appeal decision in R v Ryon , 2019 ABCA 36 and R v Achuil , 2019 ABCA 299 . [ 63 ] The R v W(

D) framework provides useful guidance regarding the assessment of credibility within the context of the criminal burden and standard of proof. “The purpose of the R v W(

D) approach is to ensure that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. When faced with competing stories, the Court must not simply prefer one over the other: R v CLY , 2008 SCC 2 , paras 6 - 8 , [2008] 1 S.C.R. 5”: R v SMC , 2020 ABCA 19 at paras 22-23 . R v W(

D) sets out a well- known three-branch test, at page 758, which states:

First, if you believe the evidence of the accused, obviously, you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [64] Recently the Alberta Court of Appeal has suggested a refinement of the approach to the R v W(

D) analysis in R v SMC, 2020ABCA 19. The four-part analysis outlined by the Court of Appeal in R v SMC. is as follows: 1. The burden of proof is on the Crown to establish the accused's guilt beyond a reasonable doubt. The accused is not required toprove his innocence or disprove any of the evidence led by the Crown. 2. If the accused's evidence denying guilt is believed, or even if not believed still leaves me with a reasonable doubt that it may betrue, I am required to acquit him. 3.

While I should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibilitycontest requiring me to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, I am unable todecide whom to believe, I must acquit; and 4. Even if I completely reject the accused's evidence, I cannot simply assume the Crown's version of events must be true. I mustcarefully assess the evidence I do believe and decide whether that evidence persuades me beyond a reasonable doubt that the accused isguilty.

Mere rejection of the accused's evidence is not proof of the accused's guilt. [65] The Crown submits that if I infer that the Accused denied the allegations by not specifically addressing them, then an R vW(

D) analysis is required, that the evidence of the Complainant ought to be believed over that of the Accused, and that I should convictthe Accused of sexual assault pursuant to

section 271 of the Criminal Code of Canada. [66] The Defence submits that the account of the Accused is complete and that he does not admit the actions supporting theallegations against him. The Accused clearly described the circumstances surrounding Incident 1 and Incident 2 and does not admit toeither the actus reus or the mens rea underpinning the allegations against him. The Defence submits that an R v W(

D) analysis isappropriate and that analysis ought to lead to an acquittal when the test in R v W(

D) is applied. [67] I have inferred that the Accused denies the account of the Complainant where it differs from his account, regardless ofwhether he explicitly stated that denial during his testimony. Therefore, an R v W(

D) analysis is appropriate and required as the materialfacts are in conflict as between the Complainant’s account and the Accused’s account and credibility is the pivotal determinant. [68] The Complainant gave her evidence in a straightforward manner, indicative of her belief that her recollection was accurate andcomplete. She responded clearly to questions asked of her and admitted honestly where she did not have a clear recollection. TheAccused gave his testimony in a forthright manner, indicative of his belief that what he described is the truth.

The Accused responded toall questions put to him in a direct manner. [69] This case is a classic “she said – he said” case and is the very type of case that the R v W(

D) analysis addresses. Effectively,the Complainant says that the Accused kissed her without her consent twice and touched her breasts, also without her consent. TheAccused’s account is that he did not do these things and that the only physical contact he had with the Complainant on the incident datewas the hug outside the vehicles, which the Complainant admits was a consensual hug and not out of the ordinary. [70] Both the Accused and the Complainant have testified but their accounts differ with respect to the critical issue – did touchingoccur.

While it may seem that one account must be believed, and the other disbelieved, in R v Jones, (1992) (QCCA), 74 CCC (3d) 377 (Que.

C.A.), Justice Proulx said, at page 380: “... nothing prevents the judge from believing both the complainantand the [accused] who gave divergent (sic) evidence: R v Nadeau, (SCC), [1984] 2 S.C.R. 570 ...”. [71] With respect to Incident 1, the Complainant’s evidence that the Accused attempted to kiss her on the lips and that she turnedher head quickly to avoid being kissed on the lips is not borne out by the objective parking lot security footage evidence tendered by her.She stated that he ended up kissing her on the cheek.

The parking lot security footage shows that the Accused and the Complainanthugged and then she went to her vehicle, entered her vehicle to start it, which fact is not in dispute. I cannot see on the parking lotsecurity video any evidence that the Accused moved his head towards the Complainant’s face to kiss her nor do I see the abrupt turningof her face away from the Accused to which the Complainant testified.

The Accused admitted that he hugged the Complainant and, bynot indicating that anything further happened between then, impliedly denied that he kissed her on the lips or the cheek. [72] In this regard, I do not believe the evidence of the Complainant and find as a fact that the Crown has not proved, beyond areasonable doubt, that the Accused touched the Complainant with his lips while both individuals were standing in the parking lot outsidetheir respective vehicles. [73] With respect to Incident 2, the Complainant provided her account of the events that occurred in the Accused’s vehicle.

As setout above, the Complainant provided evidence, and I paraphrase, that she and the Accused were talking about the brain surgery of one ofthe owners and then he touched her left breast and then her right breast, for approximately three to five seconds, and then kissed her onthe lips. She also stated that, after the Accused touched her breasts, her response to him was “we shouldn’t be doing this. It isn’t right. You were just married”[17], or variations of that sentiment.

She stated that she left the Accused’s vehicle about one minute after the eventdescribed above. [74] The Accused’s testimony is that the event simply did not occur. His account of the events that occurred in his vehicle did notinclude touching the Complainant at all. In essence, his testimony is that he and the Complainant talked in his vehicle for a period of

between five and 10 minutes, after which she left his vehicle, entered her vehicle, and that nothing else occurred. [ 75 ] Unlike with Incident 1, the parking lot security footage is of no assistance to me as it is impossible to see inside the Accused’s vehicle during the time in question, or at all. [ 76 ] In reviewing the evidence, I have concerns about the Complainant’s credibility and reliability. I have already determined that her account of Incident 1 is insufficiently credible or reliable to be the foundation of proof beyond a reasonable doubt that a touching occurred.

In support of that conclusion, I reiterate that the parking lot security footage did not show events that would be consistent with her account. [ 77 ] The Complainant’s reliability with respect to Incident 2 is undermined by her clearly stated response to the alleged touching of her breasts – “ we shouldn’t be doing this” (emphasis added). This response does not follow if she is alleging that a non-consensual sexual touching occurred.

She was consistent and credible through examination-in-chief and cross-examination that her response to the alleged events was to state that “ we shouldn’t be doing this” (emphasis added), not that the Accused should not be doing “this”.

The response can be interpreted to reflect that both parties were, in some manner, participating in “this”, which the Complainant testified was the touching of her breasts, and that she expressed that she thought that their participation in “this” was inappropriate in light of the Accused’s recent marriage. [ 78 ] The evidence of the Accused is simply that the events as alleged did not occur. He denies that a touching occurred as described, or at all. The Accused presented his evidence in a credible manner and without any marked inconsistencies.

His evidence was that he and the Complainant sat in his vehicle for between five and 10 minutes and discussed a number of innocuous topics. He gave no evidence that anything else happened between them. However, if I believe that the Complainant uttered the words, or sentiment, “we shouldn’t be doing this”, it also strains common sense that the Accused’s version of events, being that nothing happened beyond a conversation, is reliable. Thus, on this pivotal question, I do not know who to believe. [ 79 ] Further diminishing the Complainant’s reliability is her account of the departure from the parking lot.

The Complainant stated that she got out of the Accused’s vehicle and that he drove off before she got to her vehicle. The Accused states that the Complainant got into her vehicle and closed the door before he drove out of the parking lot, closely followed by the Complainant. The parking lot security video, to which the Complainant had access, clearly shows that the Complainant exited the Accused’s car, entered her car, closed her vehicle door, and then the Accused departed from the parking lot, followed immediately by the Complainant.

While this detail is not, in and of itself, determinative of the question of whether a sexual assault occurred, the fact that the Complainant’s testimony is inconsistent with the parking lot security footage diminishes her overall reliability. [ 80 ] In total, I find the Accused’s evidence to be credible and more reliable than the evidence of the Complainant.

I believe aspects of the Complainant’s evidence but have doubt with respect to the credibility and reliability of her evidence on the critical issues of whether touching occurred as alleged in Incident 1 and Incident 2. [ 81 ] With respect to the first branch of the R v W(

D) test, if I accept the evidence of the Accused with respect to the key actions that comprise the criminal allegations, which would necessitate disbelieving the evidence of the Complainant as they are opposed in substance, I must acquit. Certainly, with respect to Incident 1, I have found that the evidence of the Accused is credible and reliable and that the evidence of the Complainant is neither credible nor reliable. However, with respect to Incident 2, I cannot say that I find either the Complainant or the Accused to be completely reliable. [ 82 ] With respect to the second branch of the R v W(

D) test, if I have a reasonable doubt as a result of the testimony of the Accused regarding the key actions that comprise the criminal allegations, I must acquit. Based on the Complainant’s lack of credibility with respect to aspects of the events that comprise the allegations that underpin Incident 2, and the reasonable doubt I have that the Accused’s version is completely reliable, I have a reasonable doubt as to what really happened in the Accused’s vehicle that night. [ 83 ] With respect to the third branch of the R v W(

D) test, if I am not in doubt based on the evidence of the Accused, presumably by disbelieving his version of events, then I must consider whether, on the totality of the evidence that I do believe, I have a reasonable doubt as to whether he committed the essential elements of the offence, in which case I must acquit. Conclusion [ 84 ] With respect to Incident 1 – alleged kiss outside the vehicles – I find that the Crown has not proven the actus reus of the offence of sexual assault.

Therefore, I find that the Accused is not guilty of committing a sexual assault with respect to Incident 1. [ 85 ] With respect to Incident 2 – the alleged touching of the Complainant’s breast or breasts and the alleged kiss inside the vehicle – I do not unequivocally believe the evidence of either the Complainant or the Accused. Accordingly, firstly, I find that the Crown has not proven the actus reus or the mens rea of the offence of sexual assault.

Secondly, in accordance with the principles set out in R v W(D) , I find that I have a reasonable doubt as to which version of the evidence to believe and, therefore, on the second branch of the R v W(

D) test, I must acquit the Accused of the allegations that comprise Incident 2. Therefore, I find that the Accused is not guilty of committing a sexual assault with respect to Incident 2. Dated at the City of Calgary, Alberta this 18 th day of September, 2023.

I.L. Maharaj A Justice of the Alberta Court of Justice Appearances: Sara Sicherman for the Crown Hardeep Sangha for the Defendant