R. v. R.K.D., (2012) 546 A.R. 168 (PC)

• Judge: Dinkel, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 19, 2012
• Citations: (2012), 546 A.R. 168 (PC);2012 ABPC 205

R. v. R.K.D. (2012), 546 A.R. 168 (PC)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AU.036

Her Majesty the Queen v. R.K.D.

(101228831P1; 2012 ABPC 205)

Indexed As: R. v. R.K.D.

Alberta Provincial Court

Dinkel, P.C.J.

July 19, 2012.

Summary:

The 26 year old accused was charged with sexual interference and sexual assault of a 14 year old girl.

The Alberta Provincial Court found the accused guilty of both offences.

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.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - The 26 year old accused was charged with sexual interference and sexual assault of a 14 year old girl - The accused and the girl had never met before - Both had been drinking - The accused denied penetration - DNA that was a likely match to the accused was recovered from the girl's vagina - She had sustained injuries that were indicative of non-consensual sex - The accused claimed he had an honest but mistaken belief that the girl was 16 years old and that he had taken all reasonable steps to ascertain her age - The Alberta Provincial Court found the accused guilty of both offences - Neither the evidence of the accused nor the girl was credible - The court was not convinced beyond a reasonable doubt that the girl had not consented to sexual contact - Defence counsel had breached the rule in Browne v. Dunn by failing to cross-examine the girl on the issue of penetration - The court therefore reduced the weight of the accused's evidence on this issue and found that there had been penetration - The accused failed to take all reasonable steps to ascertain the girl's age - A simple visual observation was insufficient given the large age disparity - Closer scrutiny and more inquiries were required in circumstances where the partners were unfamiliar with each other, when either partner was intoxicated, and when encountering a partner in a darkened room - The accused had agreed on cross-examination that he did not ask and did not care how old she was.

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - [See Criminal Law - Topic 674 ].

Cases Noticed:

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 3].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 4].

R. v. Lifchus (W.) (1997), 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 4].

R. v. Abdirashid (F.A.), [2012] A.R. Uned. 121; 2012 ABPC 22, refd to. [para. 44].

R. v. C.L.Y. (2008), 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 45].

R. v. Currie (E.R.) (2008), 446 A.R. 41; 442 W.A.C. 41; 2008 ABCA 374, refd to. [para. 45].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 2005 NSCA 162, refd to. [para. 46].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 48].

R. v. Melnick (J.W.) (2005), 386 A.R. 367; 2005 ABPC 220, refd to. [para. 48].

R. v. Werkman (B.L.) (2007), 404 A.R. 378; 394 W.A.C. 378; 2007 ABCA 130, refd to. [para. 48].

R. v. T.S.H., [2008] A.R. Uned. 699; 2008 ABPC 281, refd to. [para. 48].

R. v. R.A.K. (1996), 175 N.B.R.(2d) 225; 446 A.P.R. 225; 106 C.C.C.(3d) 93 (C.A.), refd to. [para. 65].

R. v. L.T.P. (1997), 86 B.C.A.C. 20; 142 W.A.C. 20; 113 C.C.C.(3d) 42 (C.A.), refd to. [para. 65].

R. v. Dippel (A.) (2011), 505 A.R. 347; 522 W.A.C. 347; 2011 CarswellAlta 970; 2011 ABCA 129, refd to. [para. 67].

R. v. Crangle - see R. v. G.C.

R. v. G.C. (2010), 266 O.A.C. 299; 2010 CarswellOnt 4031; 77 C.R.(6th) 98; 256 C.C.C.(3d) 234; 2010 ONCA 451, leave to appeal refused (2010), 416 N.R. 390; 2010 CarswellOnt 9683; 2010 CarswellOnt 9684 (S.C.C.), refd to. [para. 67].

R. v. Stoll (T.) (1999), 88 O.T.C. 33; 1999 CarswellOnt 245 (Gen. Div.), refd to. [para. 67].

R. v. M.G.B., [2005] A.R. Uned. 705; 2005 ABPC 215, refd to. [para. 68].

Counsel:

Lauren I. Wuttunee, for the Crown;

Ignacy Henry Pielecki, for the accused.

This matter was heard by Dinkel, P.C.J., of the Alberta Provincial Court, who delivered the following decision in Siksika, Alberta, on July 19, 2012.