R. v. J.P.,

• Judge: LeGrandeur
• Neutral Citation: 2015 ABPC 186
• Citation: [2015] A.R. TBEd. AU.129,2015 ABPC 186,[2015] AR TBEd AU129
• Date: 20 August 2015
• Court: Provincial Court of Alberta (Canada)

R. v. J.P., [2015] A.R. TBEd. AU.129

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. AU.129

Her Majesty the Queen v. J.P.

(140017724P1; 2015 ABPC 186)

Indexed As: R. v. J.P.

Alberta Provincial Court

LeGrandeur, A.C.J.P.C.

August 20, 2015.

Summary:

The accused was charged with sexual assault, incest and sexual interference (Criminal Code, ss. 271, 155(2) and 151), all of which were allegedly perpetrated against his then 13 year old daughter in the early morning hours of January 1, 2014. All of the alleged offences arose from an alleged single encounter between the two over the course of minutes in the accused's bed, in the home where the accused, his wife, the complainant and one of her younger siblings resided. The accused denied any contact with the complainant save for her hand touching his penis, which he asserted was not initiated by him. Further, he asserted that he did not assault the complainant sexually or otherwise and that he was under the mistaken belief that the person with him in his bed at 2 a.m. was his wife, not his daughter. He stated that his response to the contact initiated by his daughter was premised in the belief that it was his wife that was touching him.

The Alberta Provincial Court dismissed the charges. With respect to the incest charge, the court was left with reasonable doubt that sexual intercourse took place or that there was even an attempt at sexual intercourse by the accused. Accordingly, the actus reus of the offence was not made out. With respect to the allegation of sexual assault arising in conjunction with his alleged holding of her hand on his penis and masturbating, the court was left in reasonable doubt that it occurred, although her hand did touch his penis. The actus reus of sexual assault required voluntary touching of a sexual nature. It could not be said beyond doubt that his actions in that regard were voluntary. With respect to the offence of sexual interference, although the accused did not have to be the instigator of such a touching, it also had to be a voluntary act. Although it was clear that there was momentary touching, the court was not satisfied beyond a reasonable doubt that the touching was voluntary on the accused's part.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - See paragraph 75.

Civil Rights - Topic 3189

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to remain silent and protection against self-incrimination - See paragraph 75.

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - See paragraph 75.

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - See paragraph 75.

Criminal Law - Topic 60

Protection against self-incrimination - Silence affecting subsequent issue of credibility - See paragraphs 75 and 76.

Criminal Law - Topic 136

General principles - Rights of accused - Right to silence - See paragraph 75.

Criminal Law - Topic 668

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Penetration - See paragraphs 49 and 50.

Criminal Law - Topic 669

Sexual offences - Rape or sexual assault - Intention or mens rea - See paragraphs 45, 104 and 106.

Criminal Law - Topic 670.1

Sexual offences - Rape or sexual assault - Sexual assault - Elements - See paragraphs 42 to 46.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - See paragraphs 106 and 107.

Criminal Law - Topic 705

Sexual offences - Particular offences - Incest - See paragraphs 47 to 52 and 103.

Criminal Law - Topic 706

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual interference with young person - See paragraphs 53, 54, 105 and 106.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - See paragraphs 55 to 109.

Criminal Law - Topic 4351

Procedure - Jury charge - Directions regarding burden of proof and reasonable doubt - See paragraphs 55 to 109.

Criminal Law - Topic 4360

Procedure - Charge or directions - Jury or judge alone - Directions regarding inferences from silence or admissions by silence or acquiescence - See paragraph 75.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - See paragraphs 55 to 109.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - See paragraphs 55 to 109.

Counsel:

Dawn Janecke, for the Crown;

Scott Hadford, for the defendant.

This case was heard on April 1, 13 and 28, 2015, by LeGrandeur, A.C.J.P.C., of the Alberta Provincial Court, who delivered the following decision on August 20, 2015.