R v TK, 2024 ABCJ 3

In the Alberta Court of Justice Citation: R v TK, 2024 ABCJ 3 Date: 20240104 Docket: 220652721Y1 Registry: Stony Plain Between: His Majesty the King Crown - and - TK Young Person Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , section 110(1). No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act . NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify AS must not be published, broadcast, or transmitted in any way.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. Reasons for Decision of the Honourable Justice D.G. Hancock [ 1 ] The Young Person (YP) stands charged that he, on or about April 19, 2022, at or near Stony Plain, Alberta, unlawfully committed a sexual assault upon the Complainant, AS, contrary to

section 271 of the Criminal Code of Canada . [ 2 ] The question for the Court to determine is whether the Crown has proved beyond a reasonable doubt that the sexual contact alleged by the Complainant occurred without consent. [ 3 ] At the conclusion of the trial, the decision was reserved. Counsel agreed that, in the interests of scheduling and access, the decision could be delivered in Edmonton and the matter was adjourned to docket to set a date, and then to November 6, 2023, in Courtroom #442 at the Edmonton Law Courts.

Preliminary Matters

Section 276 Application [ 4 ] Prior to trial, YP applied in accordance with the provisions of ss. 278.93 and 278.94 of the Criminal Code for leave to adduce evidence of the Complainant’s other sexual activity pursuant to ss. 276 of the Criminal Code . The evidence that YP wanted to adduce or cross-examine on related to conversations allegedly held between YP and AS in his vehicle earlier in the day and with respect to a Snapchat conversation between them on the day following. [ 5 ] A decision was delivered on that application following a hearing on July 19, 2023. The essence of that decision was that: 1.

YP should be afforded the right to make a full answer which includes being able to bring evidence, directly or on cross- examination, which he believes necessary to put forward that defence. 2. The Court and Counsel have an obligation to ensure that the scope of that evidence does not go beyond what was requested and approved pursuant to a s. 276 application. In this context that would simply be the evidence that a conversation took place and the contents of the conversation. No examination of the content itself would be necessary or allowed. 3.

YP was allowed to adduce evidence with respect to the existence of a conversation between the YP and AS on the same day as the alleged sexual assault, about their “turn ons” including choking and to raise the evidence on cross-examination of AS. The evidence and examination could go no further than necessary to establish when, where and what was discussed. No questioning shall be undertaken or allowed which would result in or be perceived as disclosing other sexual activities apart from those specifically part of the alleged offence.

Section 715.1 Video Voir Dire [ 6 ] The Complainant, AS gave a statement by way of a video interview conducted May 6, 2022. The video statement was admitted into evidence following a Voir Dire . The video was determined to be admissible pursuant to s.715.1 – it was made within a reasonable time after the offence, the Complainant described the acts complained of and adopted the contents of the video as her evidence. [ 7 ] Defence Counsel did not object. There was agreement as to the circumstances of the taking of the video statement and that the Police Interviewer was not required to attend to verify same.

Certain portions of the video were redacted by agreement as well. [ 8 ] A transcript of the redacted video interview was provided and entered as an exhibit at trial as well, with the consent of both Counsel. [ 9 ] AS took the witness stand and adopted the contents of the video as her evidence and was available for cross-examination. The video was made within a few days of the alleged offence and there was no issue with respect to the reasonableness of the time. The video was admitted, and the evidence given in the Voir Dire was accepted as evidence for the trial.

Section 486.2 and 486.1 Applications [ 10 ] The Crown applied to allow the Complainant to testify from behind a screen and also to be supported by a support person. Again, there was no objection to the applications, and they were granted. The support person was instructed that no gestures nor other communication with the witness was permitted. Issues: [ 11 ] YP and AS connected at school on Wednesday.

On the day in question, the following Friday (two days later) they met, went to his car and he drove AS to her home to pick up her sports kit, then to pick up pizza and snacks and travel to his home west of Stony Plain. When they arrived at his residence they proceeded to the basement where they ate and started to watch a movie. His parents were home. AS was introduced to YP’s brother before they went to the basement. During the movie they sat together on a reclining couch where they began to “make out”, starting with kissing and then progressing to more intense activity.

They did not have intercourse. [ 12 ] Their descriptions of the events are somewhat similar but are told from obviously different perspectives, different orders of activity, and in some ways, different activity. [ 13 ] Every person is entitled to the integrity of their person.

No sexual act can be undertaken between two people without the explicit consent of both persons. [ 14 ] Sexual activity involving a person who does not consent to that activity is a criminal act, and even where there are willing participants getting to know each other, we have to ensure that it is very clear – no part of that activity can proceed without the consent of both parties. [ 15 ] In the context of a continued activity, consent to one act does not constitute consent to all acts. [ 16 ] The law is very clear. Explicit and communicated consent is required before engaging in sexual activity.

What is more difficult is the question of how that consent must be communicated. [ 17 ] When is not as much the issue – there can be no “prior consent”. Consent must be coterminous with the activity. And as noted above, consent must be ascertained to each act. But case law is clear that consent must be positively communicated. Consent need not be verbal and can be communicated by actions. [ 18 ] This issue is dealt with extensively in R v Barton 2019 SCC 33 at paragraphs 88 to 93 and beyond.

[89] Consent is treated differently at each stage of the analysis. For purposes of the actus reus , “consent” means “that the complainant in her mind wanted the sexual touching to take place” ( Ewanchuk , at para. 48). Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple (see Ewanchuk , at para. 31). At this point, the actus reus is complete.

The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A. , at para. 37). [90] For purposes of the mens rea , and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” ( Ewanchuk , at para. 49).

Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions” ( ibid. , at para. 47). [ 19 ] Barton also sets out in para 108 (and I acknowledge that this was on significantly different facts – but the reasoning is still important): It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated.

For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertain consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day the reasonable steps inquiry is highly contextual, and what is required will vary from case to case. AS Evidence: [ 20 ] AS is 17 years old and was 16 at the time of the alleged offence.

Her evidence was that she and YP had been in classes together at school. After YP was made aware through friends that she liked him, they started talking. This started on Wednesday. The incident complained of happened two days later, on Friday. AS advised that she had told him she was 120lbs. He had told her he was “around the 200 mark”. She indicated she was 5’7”, and “he was a bit taller”.

While this information was provided in evidence, there was no evidence that the difference in size resulted in intimidation or force. [ 21 ] AS also indicated that she had told YP she had auto-immune disorder, something off with her thyroid, and that she was taking medications for it. She also mentioned to him that she was also on anti-depressants for her anxiety. She went on to say that she told YP she had “decent anxiety, that I don’t usually hang out with guys I haven’t met before”. She indicated that she “giggled” when she was nervous.

All of this was in an apparent attempt to suggest YP should have known that her actions were not communicating consent. [ 22 ] AS indicated that YP was kissing her aggressively and that she turned her head to stop it. She nuzzled his neck at his request to avoid the deep kissing. She reacted to some of his advances by tucking her head in and giggling. [ 23 ] When YP asked if he could put his hand under her shirt she said yes. He went further, touching her breasts and going under her bra.

It was her evidence that she had not consented to him touching her breasts, that she thought she was only agreeing to the initial touching, not to him going further. [ 24 ] At some point, YP asked if she wanted to go to a local gas station. The implication was that they could obtain a condom there, although neither AS nor YP stated that explicitly. AS declined. [ 25 ] YP went further and asked if he could put his hand down her pants. She indicated she said, “I don’t know”. He proceeded and, according to AS inserted his fingers in her vagina and was rough. “It hurt”. He then proceeded to lower her pants.

She agreed she may have assisted by lifting her hips. At some point, she indicated he was grinding himself against her. [ 26 ] YP then proceeded to kiss her vaginal area before stopping, indicating that he thought she wasn’t “into it”. He later made a reference to her having too much hair there and that she should shave there next time. [ 27 ] YP went to the bathroom and AS proceeded to reassemble her clothing.

They then left and YP drove her to her aunt’s place. [ 28 ] AS discussed the events with a friend on a communication app and in that process determined that what happened was wrong, she hurt, and she was not happy. She engaged in a conversation the next day, also by communication app, with YP who maintained his belief that she had consented, but agreed that they “had gone too far, too fast”. YP Evidence: [ 29 ] YP testified. His evidence was essentially that he asked for and received consent. He said that he asked to touch her breast. The answer was “yes”.

He was clear that he heard an affirmative, “yes, yah sure.... a positive yes to go ahead”. [ 30 ] YP indicated that he also asked if he could take off her pants. She said “yes”. In a communication the next day his messages tended more to whether he had read signals wrong, rather than actually hearing an affirmative answer. His response to questioning was that he was attempting to respond to her messages, in essence, to mollify her – not trying to assert what actually happened. [ 31 ] In an earlier affidavit and evidence, he stated that it was a direct quote.

At trial, he said he had not realized he did not have to use “Yes” – that he could use other words or actions. “I finally learned that I don’t have to say like a full “yes” that was the right words, I didn’t know I could say oh it was a positive yes, yah or so I believed that I had to say a positive yes that was it”. [ 32 ] After that statement, it is difficult to determine whether the evidence given by YP was what actually happened, or whether it was what he thought “he had to say”.

Clearly, YP had a concept of the requirement for consent, and it would appear possible that he adapted his evidence to comport with what he thought was needed – he needed to show that he had received consent. When he thought it

had to be verbal and affirmative that is how his evidence portrayed it. [ 33 ] His evidence was essentially: We were making out and then she hopped on top of me. She got on top of me and started grinding her hips on my private parts. Clothes were on at that point. She did put her hands down my pants and started stroking my privates. Did not recall any conversation before she started touching him. He indicated that he ejaculated, they both went to the washroom to wash their hands and they then went back to the couch. She was energetic, talkative, happy.

I said “your turn” – she replied, don’t recall the exact words but it was go ahead. She was excited, happy she gave a positive go ahead. She responded with words. We started making out again. I asked if I could put my hands up her shirt. She responded positively. I asked her if I could put my hands down her pants. She responded with a, verbally. I don’t recall exactly what she said. Asked her to lower her pants. She lifted her hips and pulled down her pants. I started to put my fingers in her. She was happy, moaning, playing with my hair. Other comments: “Smiling ... eyes were open ... happy ...

Touched her neck or jaw ...Only touched her neck.... Roughly before the finger started.... Kissing.... Asked her if I can choke her ... she replied - don’t recall exactly the verbal words she said but she said yes along the lines of a positive go ahead”. Why did you ask that question? “Because of the earlier conversation when she said one of her turn-ons was choking and I know that doesn’t give me consent for hours later to do it so I asked for consent, so it wasn’t a surprise or anything.... Put very little pressure on”. “...Began to give oral sex”. Any conversation? “Don’t recall.

She was playing with my hair, smiling, moaning, pleasurable, happy”. “I stopped because down there was not well groomed, kind of turned me off in the situation.... She puled her pants back up. ...Believe I went to washroom to wash my hands. Did you hear her say “I don’t know”. “No, I did not”. Did you have your pants pulled down? “No, I did not”. At any point did you put your penis in her vagina? “No, I did not”. “After washing we went back to the couch...Started talking... Was it good for you? We both said yes...

Her demeanor – she seemed happy, there was no problem at all”. [ 34 ] YP was presented with a picture which he described as a picture of “me and her cuddling” and he indicated that it accurately showed the two of them after the sexual touching happened. He identified it as a photo he had taken. The picture was a capture from a friend’s phone. There was no good evidence other than YP’s statement as to when it was taken. [ 35 ] At one point YP indicates that while he was giving the Complainant oral sex, he saw that she was smiling, she had her eyes open, and she was happy.

As the Crown pointed out in argument – it would be very hard to accomplish seeing her face while engaged in that activity. [ 36 ] YP indicated that, in conversation after the fact, they concluded that they had gone too far too fast. They hadn’t “put a label of their relationship yet”. [ 37 ] Regarding the messages: First time she is confronting you that it was nonconsensual? Yes. And you understood that non-consensual sex was a sexual assault? Yes. I was outraged.

I could not believe that it was happening, cause I thought well I know nothing happened that was wrong, I had consent during everything, so I was very upset”. [ 38 ] The Defence position is two-pronged – Crown has not proven the actus reus – absence of consent beyond a reasonable doubt. If the Court accepts some of the Complainant’s evidence there is still an honest, but mistaken belief in consent based on the evidence. The Court should accept YP’s evidence as he was candid, direct, genuine, not combative, fair, attentive, and deliberate.

He was steadfast in both his oral testimony and in the messages that he had requested and received consent. Law: [ 39 ] Counsel in their arguments correctly advanced the relevant law. I do not intend to review the sections further. There were sexual acts involving YP and AS. There are different versions of the facts. The question for the Court to determine is whether the sexual assaults were absent consent or reasonable but mistaken belief in consent. This boils down, as Counsel asserted, to a WD analysis.

[40] The burden of proof is on the Crown to prove the sexual assault occurred beyond a reasonable doubt. That is not absolutecertainty, nor proof beyond any doubt nor is it an imaginary or frivolous doubt (Cory, J, R v Lifchus (SCC), [1997]3SCR 320 at p. 36). It is not simply a credibility contest. It is not a question of who has the best or more likely version of events.

Reasonable doubt applies to the issue of credibility, and this is where the WD analysis comes in. [41] The analysis simply put – if you believe the evidence of the accused you must acquit; if you do not believe the testimony ofthe accused, but you are left in reasonable doubt by it, you must acquit; 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 which you do accept, you are convinced beyond a reasonable doubt by thatevidence of the guilt of the accused (R v W(D), (SCC), [1991] 1 SCR 742 p 757).

R v H(CW), (BCCA), [1991], 68CCC(3d)146 (at p 155) added “if after careful consideration of all the evidence you are unable to decide whom tobelieve, you must acquit”. [42] The first part of the WD analysis is not simply whether the accused has an explanation or a version of events that constitutes adefence to the charge or that his version must be accepted as being the truth. If it was a simple matter of the accused taking the stand andsaying that it never happened, the Crown would never successfully prosecute a charge. The defence must be believed.

That is adetermination that must be made in the context of all the evidence, not just that of the young person. [43] The second part – if portions are not believed or if one does not know who to believe, then acquittal must follow. If there isexculpatory evidence that is believed or even if it just raises a reasonable doubt acquittal must follow. [44] The third part still requires meeting that test – based on all the evidence heard are you persuaded beyond a reasonable doubt? [45] The added fourth question is also valid – based on all the evidence, if you are unable to decide, you must acquit.

Analysis [46] AS gave evidence of serious allegations which would certainly meet all the elements of the offences charged. There was noquestion, on the evidence of both parties that sexual acts took place. The only questions to be determined: Was there consent to everyelement of the sexual encounter? If there was no consent, did YP have a real, but mistaken belief that there was communicated consent? [47] YP’s evidence was basically that the events occurred but that he obtained consent throughout or believed that he had consentthroughout. His manner was much less assured than the Complainants.

He did not impress as being malicious or bullying. He cameacross as someone who was excited about the prospect of a new relationship and was aware of the concept of consent – but that in themoment did not restrain himself and ensure that both parties were engaged and agreed to the activity. [48] The question is not simply did he believe he had consent – it is also whether it was reasonable for him to have a real butmistaken belief in communicated consent. [49] It is that “communicated” part that causes concern. Mere acquiescence is not sufficient.

AS is not required to say no, push himaway, or in any way communicate “No”. Every person is entitled to the integrity of their person. They have the right not to have thatintegrity violated or encroached upon unless they have communicated positive consent to the activity. It comes down to a question as towhether, intended or not, by the actions of the Complainant, YP could have a reasonable belief that consent was communicated.

Thatrequires some positive action and some positive participation whether by words or conduct. [50] After hearing all of the evidence and subjecting it to a WD analysis, I have to conclude that the positive action and thepositive communication were not there. [51] AS did participate in the early kissing, but even then, had boundaries. She said no to “going to the gas station” which shouldhave been an indicator she was not prepared to have intercourse.

Notwithstanding that, YP in touching her breasts, inserting his fingersgrinding himself against her and attempting oral sex, the actions both, described did everything but. [52] AS agreed to allow touching under her shirt – but there is no indication of a request for consent to go further, and noindication that her actions provided that consent. She did not consent he could go further and touch her breasts, and he made no effort toascertain that further consent. [53] It is her evidence, and I accept it, that when she was asked if he could touch under her shorts she said, “I don’t know”.

Whilethat is not a clear no – it is not eager participation, it is not yes! The evidence that she may have helped remove her shorts by lifting herhips may be construed as participation at that point – but does not go so far as to include oral sex – for which there was no indication ofconsent. [54] While there were a few instances of communicated verbal consent, there were also instances where I believe the Complainantwhen she said she did not consent to having her breasts touched and did not consent to oral sex or digital penetration.

In those instances,the question arises as to whether it is reasonable for YP to believe consent had been communicated. [55] At this point where it is important to note that the Complainant and the YP did not know each other very well. They had justconnected that week. YP did not have any understanding of how the Complainant communicated her likes and dislikes, or how she wasfeeling about what was happening.

Because they were at the beginning of their relationship and did not even know if they would have arelationship, “they hadn’t put a label on it yet”, it is important that communication be very clear when taking such intimate and invasivesexual steps. Certain portions of the sexual contact could be considered to be very invasive (Barton, supra, para 19). Touching breasts,digital penetration, and oral sex in this circumstance fall into that category. That clarity was not there.

YP was not entitled to make thoseassumptions. [56] Given the above, on the entirety of the evidence, I have to find that the allegations have been proved beyond a reasonabledoubt. They’re not consent was for all of the sexual activities engaged in. There was not a reasonable but mistaken belief in

communicated consent for all of the sexual activities. YP must be found guilty of sexual assault as charged. Heard on the 8 th day of August, 2023. Oral decision rendered on the 6 th day of November, 2023. Dated at the City of Edmonton, Alberta this 4 th day of January, 2024. D.G. Hancock A Justice of the Alberta Court of Justice Appearances: K. Stewart-Lund for the Crown L. Matalas for the Young Person