Justice R.C. Mills handed down his decision at the Court of Queen’s Bench in Moose Jaw Monday morning in the sexual assault case against Moose Jaw lawyer Estes Fonkalsrud.

Fonkalsrud was found not guilty on all of the three charges against him: ‘for a sexual purpose, touch the complainant, a person under the age of 16, contrary to s.151 of the Criminal Code, RSC 1985, c C-46; commit a sexual assault on the complainant, contrary to s. 271 of the Criminal Code; and for a sexual purpose, invite the complainant to touch a part of his body, contrary to s. 152 of the Criminal Code’.

The charges stemmed from an alleged incident at Buffalo Pound in May of 2016.

Before reading his 26-page decision, Justice Mills advised the court that two legal principles – the first: how to approach the evidence of children (The Supreme Court of Canada in R v W. (R), [1992] 2 SCR 122; and second: the approach that the Supreme Court of Canada has directed trial judges to take when an accused testifies on his own behalf at trial. Mills referenced Court of Appeal in R v M. (P.N.) (1996), 106 CCC (3d) – would be applied in assessing particular evidence.

In his decision, Mills said, “I would have expected the complainant would have realized the seriousness of the situation regarding the charges and the allegations that she has made against the accused. I ordered, at the Crown’s request, that the complainant testify by video from the soft room where a support person would be present in order to put her at ease and obtain a full and frank disclosure from her of what she says occurred. At one of the most important times during her testimony, that is when she described the physical contact between her and the accused, her facial expressions were at times amused. I was surprised by this as I thought that she would have taken the situation much more seriously giving the testimony dealing with the very specific nature of the physical contact she alleged occurred between them.”

Mills also pointed out, “The complainant’s willingness to provide information to the police based not on her knowledge of the event, but rather on the knowledge of a third person that would contradict the complainant’s original story, is what is disconcerting.” He also said it was “even more troubling” that the complainant made a statement that “clearly was false” with regard to the colour of the accused’s truck. The complainant initially alleged the accused drove her to his cabin in a dark-colored truck. Six days later, on May 28, the complainant advised the police that the truck she was driven away in was white. Mills wondered, “Why did she change her story about the relatively less significant issue of the colour of the truck? The reason is that the [complainant’s friend] told her that the accused’s truck was white.” It had been established in previous evidence that the accused’s truck was a dark burgundy color.

Mills said the evidence of the complainant's friend was “crucial” and that “the information she provided at trial was different than the information she had provided previously in this case, especially the initial statement to the police. The information that [complainant’s friend] provided previous to the trial was confusing at times. She gave a second statement to the police on May 28, six days after the incident. In that statement she said that the accused pulled the complainant out the window. That statement is false. She told the police that the accused had locked the complainant in a white truck. That clearly was false.. When questioned in cross-examination on this point, she ended up saying she did not recall where the information came from or why she said what she said to police.”

Mills continued with regard to the complainant's friend. “[Complainant’s friend’s] answers to difficult questions were often met with the phrase “I don’t recall”. The credibility of [complainant’s friend] is extremely strained. Her initial description of the complainant’s return in a hysterical state is inconsistent with the complainant and [complainant’s friend] having a discussion about what to say or not to say about the incident.”

Mills said he was “a little more concerned” that “an alleged abduction and sexual assault would have been the focal point of the discussion rather than a conspiracy to hide the fact of consumption of alcohol” by the complainant and two others.

In his judgment Mills said, “The investigation revealed that a kidnapping had not occurred.”

The “significance of [the smoker] for the case appears to be that the smoker would provide easy access to the walkway adjacent to the bedrooms and this would have given the accused the opportunity to knock on the window. The evidence of the location of the smoker and the motion light, however, would suggest that if [another witness] had gone out to look at the smoker, [witness] would be able to see the walkway and access to the windows. They appeared to be more or less in alignment and the smoker is only a couple of feet away from the walkway.”

In his conclusion, Justice Mills said, “I often hear the comment of 'why would the complainant lie about something as serious as this?' The court does not decide cases based on public perception, but rather on the evidence presented to it in a particular case. In this case, there is acknowledgement by the complainant of providing significant false information to the police on a number of issues - issues that are not mere technicalities, but go to the very root of the allegations. The testimony of the main witness supporting the complainant’s allegations also contains misinformation and outright lies over significant matters. [Complainant’s friend] has clearly lied to the police or is lying to the court. Based on the testimony from the primary witnesses, being the complainant and [complainant’s friend], the Crown has nowhere near to proof of the charge beyond a reasonable doubt.”

Mills said, “Under the circumstances, the accused is found not guilty of the offences.”

Fonkalsrud had testified on his own behalf. He was not available for comment after the judge’s decision. Defence lawyer Aaron Fox said, “I think the judge saw the evidence similar to how we saw it. There were significant issues with the credibility of the complainant and the main Crown witness, and the court simply recognized that.” Fox said that, “without a doubt” justice was served. “Justice is served when you have a trial, before an independent adjudicator – in this case, a Queen’s bench judge – who makes a decision. Justice is served when that happens. It’s not a question of guilt or innocence or right or wrong. It’s the process that ensures that justice is served.”

Crown Prosecutor Todd Wellsch on Mills’ decision: “We’re obviously disappointed, but he went through the facts as he found them and he had a reasonable doubt.” When asked about Mills’ comments that the Crown had nowhere near to proof of the charge beyond a reasonable doubt, Wellsch responded, “Well, I’m not so sure that I would agree with him. He found that we weren’t. He didn’t necessarily believe the testimony of Mr. Fonkalsrud; based on evidence, he had reasonable doubt.”

Mills said in his decision, “In the answer to the question 'do I believe the accused,' I cannot say with certainty that I do, as the accused’s evidence has to be assessed in conjunction with the whole of all the other evidence presented. Given the misinformation and contradictions, I am unable to state that I believe the complainant. On the whole, I prefer the evidence of the accused over that of the complainant and [complainant’s friend]. In such a situation I must obviously acquit.”

A scheduling conflict last month delayed the Justice’s decision until today.