(STAFF WRITER / iNFOnews.ca)

KAMLOOPS — An Alberta man has been found guilty of sexual assault from an incident that took place more than four years ago involving a Kamloops teen.

Cory Richard Swain was charged in 2017 on one count of sexual interference and sexual assault of a person under the age of 16, according to a court decision recently released.

Swain pleaded not guilty to both charges but was convicted in June after a two day trial in front of a Supreme Court Justice. The only witnesses who testified were Swain and the complainant who was 15 years old at the time.

The teenager cannot be named due to a court ordered publication ban protecting her identity.

Court heard through the complainant’s testimony she was staying at her friend’s house during July 2015. Also staying at the house was the friend’s family including her sister and her sister’s boyfriend, Swain, and their two young children from Alberta.

The complainant testifies she rarely interacted with Swain during their visit and the only time she could recall was at a nearby waterpark. The nature of the conversation was related to his children, the court decision says.

The complainant says she was used to staying at her friend’s bedroom upstairs but on the night of the sexual assault the two teens decided it would be fun to sleep in the hammock outside in the backyard.

“They were sitting and talking on the patio in the backyard and and at a certain point Cory came out to join us,” the decision says, quoting the complainant’s testimony.

There was no alcohol involved and the complainant testified that she and her friend were on the backyard patio from approximately 10 p.m. or 11 p.m. until 4 a.m.

The complainant testified there were two interactions of physical and sexual nature with Swain.

The first was when the complainant was getting a drink in the kitchen and on the way down back to the backyard Swain said "I’m sorry but I have to do this; don’t tell anyone" and grabbed her butt using one hand.

The complainant says she panicked when this happened and just said "OK" and kept walking.

The second interaction took place when she went upstairs to put her glass in the kitchen sink. The complainant says Swain came up from behind her claiming he was going to bed for the night.

“After putting her glass in the sink, she was standing facing away from him on her phone when he came up behind and started touching her,” the decision says.

The complainant says Swain put his hand on her pyjama shorts and slipped his hand down the back of the shorts and put one of his fingers inside of her.

The complainant says he then went to take off her shorts and placed her hand on the outside of his pants so she was touching his penis.

The complainant says she panicked and told Swain her friend would be wondering where she was. She says Swain said "OK" and the briefly kissed her in an "slightly aggressive" manner with tongue.

Nothing further was said and the teen went back downstairs to try and sleep in the hammock. After waking up the next morning, the complainant says she called her mother to go home. She made a diary entry on her phone about the incident and shared it with a friend a few days later.

There were three significant details in the complainant’s phone diary version of events that the teenager did not mention to police or in her examination in chief, the decision says.

In those details the complainant says Swain would slap her bottom when no one was looking, he  ran his hands down the side of her body and he placed her hand on his pants and exposed his penis.

When the complainant was confronted with those details during her cross-examination, she said she did not recall these things at the time and also did not recall them during the trial.

In Swain’s testimony, he says he was visiting his common-law wife’s family in Kamloops during July 2015 with his two children.

On the night in question, Swain says he went to bed around midnight and woke up at around 5 a.m. when he heard lots of talking and laughing. When he went outside to have a smoke, he found the complainant, his wife’s litter sister and brother in the backyard and asked them why they had to make so much loud noise.

Swain says he sat there having a few cigarettes and did not partake in the conversation. According to Swain, the three teens were talking about threesomes and at one point the complainant asked him "Were you a pervert like us at 15?"

Swain says he laughed in response to the question because he didn’t know how to respond.  After 25 minutes, Swain says he went to the kitchen to get a drink of water. When he got there, the complainant was already there having a glass of chocolate milk.

He says the teen put it down on the island and pulled him in to try and kiss him.

“I pushed her away saying ‘what are you doing? You’re 15,” the decision says quoting Swain.

Swain says he went back downstairs and noted the complainant did not actually make contact before he pushed her away.

He says the next time he heard about the incident was some eight months later when he was working in Fort McMurray and received a call from the Calgary police asking him to get in touch.

The Crown says the complainant was honest to a fault and admitted when she did not have a specific recall about a point. By contrast, the Crown says Swain was unrealistically rigid and precise in his recall of events.

“Matters that would have been minor details by the time he had reason to recollect them eight months later,”  the decision says.

Some of those examples include Swain recalling the exact time he woke up, what time he went outside to have a smoke, and recalling the number of cigarettes he smoked.

“This certainty of memory is claimed by the Crown to defy common experience. Mr. Swain is simply not telling the truth and his version of events should not be believed,” the decision says.

Swain’s defence lawyer says his client was unscathed by cross-examination and his version of events remained intact and should be accepted by the court.

In his decision, Justice Kent says Swain appeared as a confident witness and his testimony contained no internal inconsistencies.

“I agree with his counsel that Mr. Swain essentially emerged unscathed during his cross-examination. If Mr. Swain was lying, he did so skillfully,” Kent said in his decision.

The judge says he also found Swain’s versions of events inherently implausible.

“In such factual circumstances, while it is not impossible such a thing might occur, it is highly unlikely that a 15-year-old complainant would engage in a sexualized conversation with other minors in front of Mr. Swain,” Kent said.

Both the complainant and Swain agreed there was some interaction in the kitchen, he found Swain’s version of that interaction implausible.

Although there were some issues with the complainant’s ability to accurately recall events, the judge looked at a previous case where a young teen was sexually assaulted during a family camping trip. The complainant in this case blanked out the memory of the actual assault.

“Obviously (this case) involved a completely different factual scenario but it is an example of how a sexual assault complainant can indeed have a ‘blank memory’ regarding some aspects of the event in question and how frailty of a complainant’s memory is not necessarily fatal to the prosecution,” Kent said.

The complainant was consistent about the core events in her various statements to the police, court and and in her diary entry on her phone.

“Her inability to presently recall certain other aspects of the assault does not cause me to doubt her testimony that the core events occurred,” he said. “I believe her.”

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