WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. J.B.P., 2022 ONCJ 587
DATE: 2022 12 28
COURT FILE No.: Scarborough 998 18 35001976
BETWEEN:
HIS MAJESTY THE KING
— AND —
J.B.P.
Before Justice R. Wright
Heard on August 29, 30, 31 and October 31, 2022
Reasons for Judgment released on December 28, 2022
P. Rutherford....................................................................................... counsel for the Crown
A. Sobcuff............................................................................. counsel for the accused J.B.P.
R. WRIGHT J.:
1J.B.P. stands charged with four counts of sexual assault, four counts of sexual interference, and four counts of invitation to sexual touching stemming from allegations made by his godson, R.R., that on four separate dates, when he was between the ages of four and six, J.B.P. had R.R. perform masturbatory and oral sex acts on him. J.B.P. testified in his defence and denied that any of the alleged sexual conduct occurred.
2With such differing accounts, the Crown’s case largely stands or falls on my findings of credibility and reliability on the whole of the evidence tendered at this trial. The burden of proof rests upon the Crown to satisfy me beyond a reasonable doubt that each of the essential elements of the offences alleged has been proven.
3Because J.B.P. testified, this is a case to which R. v. D.W., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 also applies. If I accept the evidence upon which the defence relies, then I must acquit. If I do not accept that evidence but am left in a state of reasonable doubt by it, I must also acquit. Finally, I must acquit J.B.P. of the offences charged unless I am satisfied, beyond a reasonable doubt, on the evidence I do accept, of J.B.P.'s guilt. As a matter of logic, it follows that if, after a consideration of all of the evidence, I cannot decide whom to believe, I must find J.B.P. not guilty.
Undisputed Facts
4At the time of the alleged offences (which span from June of 2001 to the end of December, 2002), R.R. was between the ages of four and six. In June of 2001, he was four years old. He turned five in July of 2001.
5R.R. lived with his mother A.H. and his three older siblings: N.H., who is 16-years older; S.H., who is 13-years older; and, C.A., who is 11-years older. J.B.P. and N.H. attended high school together and dated for approximately 5 years, including during the period of the allegations.
The Crown Evidence
The Evidence of R.R.
6R.R. was 26-years old at the time of his testimony. He had been working for three years as a cashier at a grocery store. He testified that he was quiet and a picky eater as a child; he had liked playing video games and watching cartoons, and watched wrestling.
7He testified that J.B.P. was his godfather. J.B.P. dated R.R.’s sister N.H. for around five years. R.R. remembered him from an early age. R.R. testified that J.B.P. would babysit him once in a while. R.R. disagreed that J.B.P. and his family had lived with R.R.'s family for a period of time at an address on Brenyon Way.
8R.R. alleged five events of sexual activity with J.B.P. on four separate days:
(1) At his aunt's apartment on Livonia Place, where he and his family were living at the time, in June or July when he was four years old. He said this took place in the living room of the apartment in the afternoon;
(2) At his residence on Brenyon Way, Unit 66, in September of 2001. He said this took place under the computer table;
(3) At J.B.P.'s residence on Livonia Place, in 2001 a short time after the September incident (he believed in October). He said that two incidents occurred, one on the living room couch and one in J.B.P.'s bed; and,
(4) In a house on Emperingham Road, in the fall when he was six-years old (which would have been 2002). He said this took place on the living room couch.
9The incident at R.R.’s aunt’s apartment had occurred in the afternoon on a weekday. His aunt, mother and sister S.H. were at work, and C.A. was out with his friends.
10J.B.P., N.H. and R.R. were all at home. R.R. was roaming the apartment looking for his sister. The door to the principal bedroom was closed. He opened it and found N.H. and J.B.P. engaging in sex in the bed under the sheets. One of them, he believed N.H., told him to close the door. He did and went back to watching TV.
11N.H. had to go to work, and left the apartment approximately 15 minutes later. J.B.P. was to babysit R.R. after N.H. left for work until someone else got home.
12R.R. went to his uncle's bedroom to play videogames. He heard J.B.P. call to him, and he went to the living room expecting that they were going to watch TV or a movie. He joined J.B.P. on the couch. J.B.P. was flipping through channels and something explicit came up on the screen. It was two blonde women and one blonde man, taking off their clothes, and performing oral sex on each other. The pornography made R.R. uncomfortable.
13J.B.P. unbuckled his belt and took out his private parts. He pushed his pants and briefs down around his legs. He brought R.R.'s head to his genitals, and oral sex happened. In cross-examination, R.R. agreed that J.B.P. had not forced his mouth open but that J.B.P. had told him to open his mouth. J.B.P. guided R.R.'s head up and down for a couple of minutes. He estimated the oral sex took four minutes. “Most likely” J.B.P. finished into his mouth. R.R. wondered “what was the thing in my mouth,” which, at the time of testimony, he believed was semen. He quickly went to spit it out in the bathroom. R.R. then went back to playing videogames.
14His aunt came home from work within the next hour, and he went to greet her at the door. J.B.P. was getting ready to leave, and R.R. felt “a part of me was like, I guess, sad and angry at the same time like wondering like, like why is he leaving and stuff.” He was crying and upset.
15In cross-examination there was some confusion in which R.R. agreed this alleged event had occurred in the fall. When his police statement was read to him, in which he had said July, he agreed it was July or the summer. It was also suggested to him that he did not have kindly feelings toward J.B.P. after this, and that he couldn't have wanted to see him again, and he agreed with these suggestions.
16The second alleged incident occurred at his family home at Brenyon Way, Unit 66. It was a townhouse with four bedrooms upstairs on the second floor. In the living room on the main floor was a green couch on the left side, and a regular big black TV. There was a square type of computer desk beside the couch, coloured like someone had splashed colours on it, with a black stand. The computer was a regular Microsoft computer sitting on this desk.
17R.R. was in senior kindergarten. It was September. Typically, his mother or sisters would walk him to school, but he wasn't sure who would pick him up at the end of each day: he might be picked up by family members or friends of his mother. He was waiting to see who was picking him up from school that day and it turned out to be J.B.P. He was picked up around 3:30 PM. They walked to the Brenyon Way townhouse through the crossways. He and J.B.P. were the only ones at the home. R.R.'s mother and sisters were both working, and his brother was always out with his friends. R.R. believed S.H. would be home an hour or a bit more after he and J.B.P. got home.
18R.R. was watching cartoons when J.B.P. called him over to the computer. R.R. went over to see what he was doing, and there was pornography on the screen of the computer. He could not remember what the pornography depicted. R.R. was scared and taken aback. He agreed in cross that he was remembering the prior incident on Livonia. He went from checking what was on the computer screen to somehow being underneath the computer table. He did not understand why he was going under the desk. He believed J.B.P. had told him to go under the desk. J.B.P. started undoing his pants. He grabbed R.R.'s hand and made a masturbating motion and placed R.R.'s hand on his genitals. J.B.P. told him to come closer and guided his head and an act of oral sex occurred. This act lasted about a minute.
19J.B.P. went to the bathroom. R.R. went to the couch and watched TV until he fell asleep. He woke up to a commotion. It was S.H., and she was yelling words like “get away” or “stay away.” J.B.P. left, and it was just R.R. and S.H. at home.
20The third alleged incident occurred at J.B.P.'s apartment on Livonia Way, in the same building where R.R.'s aunt lived. R.R. believed he had only been there this one time. He described this apartment as having a black couch on the left side of the room, a TV on the right side of a cabinet, and a kitchen with doors you open up to go through the apartment. It wasn't a long time after the Brenyon Way incident; he believed in October when he was five. He disagreed with a suggestion that J.B.P. and his family did not start living at this address until 2002.
21R.R. had asked his mother for a sleepover with J.B.P. He hadn't seen him for a month. J.B.P. had video games, and he wanted to visit J.B.P. and have a fun time; he would watch cartoons and wrestling. He agreed in cross-examination that he had distress and guilt and animosity toward J.B.P. based on what had previously happened. He explained wanting to see J.B.P. as they had been close, and wanting to give J.B.P. another chance.
22His mother took him over in the early afternoon. R.R. went into the apartment and put his stuff in J.B.P.'s room. No one else was home. He played video games. At some point, R.R. was tired and he went to sleep in J.B.P.'s room. He woke around nine and went to search for J.B.P., thinking wrestling would still be on. He saw J.B.P. on the couch. They both then relaxed on the couch for some time.
23J.B.P. went to the VCR. He put in pornography. A man and a woman were talking, and it started to get weird. They were flirting and then he was taking off her clothes and they were making out, and it turned into full-frontal nudity. This made R.R. feel unsettled.
24J.B.P. was wearing basketball shorts and he was removing his clothes. His genitals were out, and he was masturbating. R.R. felt awkward. J.B.P. told him to come closer. He put his hand over R.R.'s hand and gently motioned to masturbate him. This was approximately a minute. He then ended up putting R.R.'s head up to his genitals. Fellatio started happening and it went on until J.B.P. ejaculated in his mouth. This took a minute to a minute and a half. R.R. felt he had no choice but to swallow it. He could not say why he felt this. He then went back to J.B.P.'s bedroom and got in the bed.
25R.R. went to sleep. J.B.P. came into the room. He went straight to the bed and got in. He was not right beside R.R., but an inch apart. R.R. heard moaning and groaning. J.B.P. started masturbating in the bed beside him. He took R.R.'s hand first to his genitals, and then he brought R.R.'s head to his genitals and guided him to do oral sex again. J.B.P. ejaculated into his mouth again. R.R. thought he had no choice but to swallow. They both went to sleep afterward.
26The next morning, they had breakfast and it was regular, like just pretend nothing happened. R.R.'s mom picked him up in the early afternoon. He testified that he felt defeated.
27In cross-examination he agreed that J.B.P.'s sister or both sisters may have come home at some point prior to the living room incident. He described the apartment as being ground floor, not too small, two bedrooms and an open-concept living/dining room, with a separate kitchen. J.B.P. had a single bed in his room, which they were sharing that night. He testified that he still wanted to bond with J.B.P. even after the first incident that day. He could not explain why in his testimony. He disagreed with a suggestion that he had never attended this residence.
28The last incident alleged was on Emperingham Road, in a townhome where one of J.B.P.'s family may have lived. R.R. was not sure if J.B.P. was living there. He disagreed with a suggestion that J.B.P. had lived on Emperingham before he lived on Livonia. R.R. was six years old, and it was the fall. In cross-examination he said it was 2001 (when he would have been only five), but in re-examination affirmed this was when he was six. He described the residence as having a couch set up around or behind a ledge. The TV was in the corner to the right side. There was a kitchen and a dining table. In chief, R.R. said he only attended this address this one time. In cross, he agreed he had been to the address for other events.
29R.R.'s mother told him she was going to drop him off. R.R. thought he would go see him, and make the best of it, watch cartoons and just stay silent. When challenged about his willingness to see J.B.P. in cross-examination, R.R. could not explain the “hold he had on me,” and said he had still had trust for J.B.P.
30His mom rang the doorbell and he went inside the house. He relaxed and watched cartoons for a bit. He might have gone to the bathroom, but wasn't sure, but he came back to the couch in the living room and J.B.P. was there. J.B.P. wanted to put something else on TV. He was trying to find something to watch and he stumbled upon an adult channel, and put on pornography. It was two blonde women and one dark-haired man. They did not have clothes on.
31J.B.P. was unbuckling his belt and trying to get into the porn. He didn't pull his jeans down, just opened them and moved his underwear. R.R. felt uncomfortable and scared. J.B.P. guided R.R.'s hand to his genitals and started to use it to masturbate. He then guided R.R.'s head to his penis and there was an act of oral sex. J.B.P. finished in R.R.'s mouth, and he swallowed the semen. This took about a minute. J.B.P. asked if R.R. was okay, and R.R. nodded. R.R. then went back to watching cartoons.
32Later that day his mom came and picked him up. He got his stuff on, his shoes, and went home. After this he did not see J.B.P. He agreed in cross that he had run into J.B.P. at a rib festival approximately six years before testifying, at which they had exchanged pleasantries.
33R.R. did not disclose these assaults until 2019. He first told his sister S.H., then his mom the same day, and the last person to know was N.H. a few days later. R.R. agreed in cross that he had contacted J.B.P. through Facebook about four years before he testified, and that there was also a phone call after the Facebook messages. He agreed that he had called J.B.P. because he wanted to hang out with J.B.P., and possibly even sleep over at his place. J.B.P. declined. R.R. could not explain why he wanted to reinitiate contact with J.B.P. at this time. He disagreed that J.B.P.'s “rebuffing” these advances had motivated him to fabricate the allegations.
The Evidence of R.R.'s Sister, S.H.
34S.H. was 39-years old when she testified. She had worked as a personal support worker for seven years. She testified that R.R. has autism. He did not start talking until he was around four-years old.
35N.H. started dating J.B.P. in 1998. When they were dating, J.B.P. was around a lot: they basically did everything together. J.B.P. would spend time with R.R. and would babysit him.
36The family lived for a time at her aunt's apartment at 30 Livonia Place along with her grandmother (on weekends), her uncle, her aunt, and her aunt's son. S.H. did not recall J.B.P. babysitting R.R. at this address. Her aunt did not work while they were living there, but her uncle did.
37The family then moved to Brenyon Way, where they lived from 2000 until 2006. J.B.P. babysat R.R. at this address maybe five times. J.B.P. was living on Emperingham, and then his family moved in with her family on Brenyon Way for a few months, around 2001 or 2002, before moving to 30 Livonia Place. J.B.P. also babysat R.R. at the Emperingham address. S.H. picked him up from being babysat at that address one to three times. To her recollection, there was always another member of J.B.P.'s family home when she picked R.R. up from being babysat at the Emperingham address.
38At the Brenyon Way residence, the family had a computer which was in the living room off to the left-hand side on a desk. S.H. was in school but also working at the Pizza Nova call centre. J.B.P. would stay with R.R., not often, but when he would she would have to come home from school to relieve J.B.P. so that he could go to work or to pick up his mom. J.B.P. would pick up R.R. from school, which was approximately a five-minute walk down the alley, at 3:30 PM and S.H. would be home by 4 PM or shortly after.
39One such day she came in to see that R.R. was asleep on the one-seater couch. J.B.P. was at the computer, using the computer. She wondered why J.B.P. would have left R.R. on this small couch. She picked R.R. up and sat on the couch with him in her arms. J.B.P. came over and made her feel uncomfortable. She may have said “stop,” or he may have just back away. She was 18-years old when this happened.
40R.R. told her about the allegations in February of 2018.
The Evidence of R.R.'s Eldest Sister, N.H.
41N.H. was 42-years old when she testified. She worked as a store manager at a dispensary. She testified that R.R. was like her first kid when she was young. He was a troublemaker who got into everything, but was very quiet and kept to himself. He went to speech therapy when he was young and was diagnosed on the autism spectrum.
42Her family lived with their aunt at 30 Livonia Place for a short while before moving to Brenyon Way. There may have been another short stay at a Lawrence address prior to Brenyon.
43She and J.B.P. started dating when she was 15 or 16-years old, in 1995 or 1996. They dated for five or six years. She thought they had broken up in 2002. J.B.P. was one of R.R.'s godfathers. J.B.P. lived on Emperingham in 2000, then in with her family for a month or two, then to Lawrence and McCowan, and then to 30 Livonia.
44J.B.P. babysat R.R. many times. The three of them would be together, and then she would have to go to work, and J.B.P. would do the transition to when her mom or aunt took over. This included when the family was living with her aunt at 30 Livonia. She worked the night shift and would leave for work at 2 PM.
45N.H. did not recall a time when R.R. had walked in on her and J.B.P. having sex at that apartment, but she acknowledged that there were times when they had sex in that apartment when R.R. would have been home.
46She believed J.B.P. had also babysat R.R. at the Brenyon Way address. She worked a lot, and left J.B.P. at that house, but did not remember specific incidents of J.B.P. watching R.R. This was also that type of transitional care until someone else got home. She did not know if J.B.P. had babysat R.R. at his own address on Livonia Place, but she believed R.R. had gone over to visit J.B.P.'s family at the Emperingham residence, but she could not provide specifics of a visit. She was not sure if J.B.P. had picked R.R. up at school, but she didn’t think so.
47R.R. told her about the allegations in April of 2018, a week before she made her police statement.
48In cross-examination, it was suggested that she had told police she didn't think that her brother would have slept over at J.B.P.'s. She agreed she had said she didn't know. She explained that it was her mother's decision. She didn't think her mother would have allowed that, but she didn't know.
The Evidence of R.R.'s Mother, A.H.
49A.H. had worked in environmental services at a hospital for almost 20 years. R.R. was her youngest child. He had always resided with her. When he was young, he did not speak. He was diagnosed with autism. He did not start speaking until between five and six years old.
50In 2000, she and her children were living at Brenyon Way, which was a townhouse. Prior to that, she and her children had resided with her sister at 30 Livonia.
51A.H. met J.B.P. when he was dating her daughter, N.H., in 1995 or 1996 when she was pregnant with R.R. J.B.P. and his family lived on Emperingham, then for several months they moved into her residence on Brenyon Way before moving to 30 Livonia.
52R.R. would be babysat at J.B.P.'s mother's house on Emperingham once in a while, where A.H. would drop R.R. off. The family had volunteered to look after R.R. when she needed help. She could not say whether J.B.P. and R.R. were alone at this residence after she dropped R.R. off.
53J.B.P. would sometimes be alone with R.R. at the Brenyon Way address, playing video games in the basement or the living room. A.H. worked from 7:30 AM to 3:30 PM, and would get home generally around 4:30 PM. R.R. had a babysitter named Joan who lived at the end of the street, and A.H. would pick up R.R. from her on the way home.
54R.R. also attended a birthday party at J.B.P.'s residence at 30 Livonia, and he stayed overnight to the next day. A.H. had attended the birthday party and agreed to leave R.R. overnight.
55She also recalled another time when J.B.P. had asked for R.R. to come over and spend the day with him to play games.
56R.R. told her about the allegations in 2018, and she called police that same day. She testified it was her decision to call the police.
The Defence Evidence
The Evidence of R.B.P., J.B.P.'s Sister
57R.B.P. was 40-years old when she testified. She had worked at Walmart for less than two years. She lived at 30 Livonia Place with her mother, son and her older brother J.B.P.
58She testified that she and J.B.P. lived at Emperingham until 2000, when she finished high school. They were evicted from that address and went to live with A.H. at Brenyon Way for a few months. They then moved to an address on Crow Trail, and then a house around McCowan and Lawrence. Finally, they moved to 30 Livonia.
59R.B.P. did not remember R.R. coming to the Emperingham address. She did not remember A.H. coming to this address either. When it was suggested to her that there were times she was not at home, and wouldn’t know who was present, she disagreed and stated, “there was always someone home.”
60As for 30 Livonia, she did not recall A.H. ever coming to that address or bringing R.R. there. She did not remember R.R. sleeping over. She stated she only left to go grocery shopping. She usually stayed home. She did not agree that there might be times when R.R. was at the residence that she was unaware of. She said she never slept anywhere else for the first two years that they lived at that address.
The Evidence of M.B.P., J.B.P.'s Mother
61M.B.P. was 68-years old when she testified. She lived at 30 Livonia Place with her son and her daughter R.B.P. and her grandson. She had worked as a cleaner for the same company for 18 years.
62In 2000, she and her children lived on Emperingham. They moved to a basement apartment in 2001 for about six months. They then moved to a house on Mirama Crescent for five or six months, and then moved to 30 Livonia Place in 2002.
63She did not recall J.B.P. being in a relationship with N.H. She testified that A.H. was R.R.'s mother. They met and spoke once. Her family then moved into A.H.’s house for two to three months in an emergency. She denied that the families were close, and that this was why they had been invited to live with A.H.
64M.B.P. testified that R.R. never visited at Emperingham and was never babysat at that address. She also testified that A.H. never brought R.R. to their residence at 30 Livonia, and that he never slept over there. In cross-examination, she said J.B.P. was never at home by himself. She agreed it was possible that R.R. had been to her residence when she was not at home. When asked if J.B.P. had a godson, she said “no. Godchildren, not sure.” When clarifying questions were put to her, she stated that he has a godchild, her granddaughter.
The Evidence of J.B.P.
65J.B.P. was 42-years old at the time he testified. He was residing with his mother and sister at 30 Livonia Place. They had moved there in 2002 and resided there ever since. He was not working and had not worked for approximately 10 years. He was suffering from illnesses related to a hernia, water retention, chest pains, and his liver, which had impacted him for the past three years, and for which he had been recently hospitalized. He has a single prior conviction for robbery from 2004, for which he received a sentence of seven months jail and two years of probation. He also has a daughter who was not residing with him.
66J.B.P. testified that he and N.H. began dating in high school and dated for approximately six years, ending in summer 2001 when he moved to McCowan and Lawrence.
67When he met N.H., he and his family were living at the Emperingham address. They moved out in 2000, or possibly 2001. N.H. and her family were living on Wayne Garden, and then moved to Brenyon Way. His family also moved into that address with R.R.'s family for a couple of months before moving to Crow Trail in early 2001. After Crow Trail, his family moved to McCowan and Lawrence for a few months and then to Livonia Place around November 2001, by which time he and N.H. had broken up.
68J.B.P. met R.R. when he was born (which he said was in 2006). He treated R.R. like a son. J.B.P. and N.H. would take R.R. with them everywhere. J.B.P. became R.R.'s godfather in a church ceremony.
69J.B.P. visited N.H. at her aunt's residence at 30 Livonia Place. He didn't know whether she was living there. He went four days a week. Sometimes her aunt, grandmother or cousin were there. Sometimes R.R. was there. There was never a time when he visited that residence that only N.H. and R.R. were there, and there was never a time when R.R. was present in the unit when he and N.H. were having sex, although they did have sex in that residence. He never babysat R.R. there. He denied that an incident of oral sex with R.R. happened in this residence, or that pornography was watched. He denied ever going there when N.H. had to go to work.
70When N.H. was residing at Brenyon Way, he would be there four or five times a week, he believed around 2001. N.H.'s other family members would be home. He first said he did not babysit R.R. at this address, but then indicated maybe once or twice until someone else got home, someone might be running late and call him. This would be after school, so about 3:30 PM until 4 PM, with 4:15 or 4:20 PM being the latest. He agreed at least one of these times it was S.H. who came home to relieve him. He denied ever picking R.R. up from school. He said they had a babysitter who picked him up and he would meet them in the road. On one occasion the babysitter gave him her key to the residence; on another she unlocked the door for him. He denied ever having a key to the residence, even when he resided there.
71Regarding the allegations from Brenyon Way, he denied there was ever an incident of watching pornography on the computer, but acknowledged he had used that computer, but only when no one else was home. However, in cross-examination, he claimed he was never at home alone, even in the three months that he lived at that address. He denied the alleged incident of masturbation and oral sex under the computer desk. He further denied that he and R.R. even watched TV together at the times he babysat. He would be busy getting R.R. a snack and then waiting for someone to get home to relieve him.
72Regarding his residence on Livonia, he testified that R.R. was never over for a sleepover or a visit. He denied that he and R.R. watched pornography in the living room and denied the alleged sex acts on the couch. He further denied the second alleged sex acts in his bed. He agreed in cross-examination that he had previously lived in a different unit at 30 Livonia, one that was on the ground floor.
73Regarding his residence at Emperingham, he denied that A.H. had ever brought R.R. to visit the family there or for babysitting. He denied ever being alone with R.R. in that residence. He denied watching pornography on the couch with R.R. and the alleged incident of manual manipulation and oral sex on the couch.
74He last saw R.R. at Rib Fest at Thompson Park about five or six years prior to testifying. J.B.P. was with his mother and R.R. was with A.H. They just said hi and walked away. His last communication with R.R. had been by phone when R.R. reached out to him. They talked about J.B.P.'s daughter and R.R. asked him if he wanted to hang out. J.B.P. said no. R.R. asked him if he could sleep over, and J.B.P. did not respond. He told him he would call R.R. back, but he did not do so.
75In cross-examination, when asked about the visits to N.H.'s aunt's apartment and sex with N.H. there, he said that this “kind of happened, not really.” When this was followed up, he said “No, not often. Not like every day. Like once in a blue moon.” He disagreed it was possible that R.R. had been in the apartment when sex was happening. He agreed he didn’t have a specific recollection of a time when they had sex, but when it was then put to him that he wouldn't be able to say who was in the apartment if he didn't have a specific recollection, he said he did have a specific recollection and it was just he and N.H. in the apartment. When pressed on this inconsistency he said he had been confused. He continued to disagree it was possible R.R. had walked in on them.
76He was also questioned about his evidence of his relationship with R.R., and that he “treated him like a son.” He acknowledged his evidence was that R.R. had never come to his residence on Emperingham. He acknowledged his evidence was that at Brenyon Way, he would just make R.R. a snack and would then just wait, and that he did not watch TV with him. He denied ever watching TV with him. He denied ever playing games with him. He denied watching wrestling with him. When it was suggested to him that, based on his evidence, he and R.R. really weren't close, he stated “what can you do with a, a two-year old? You can't do much.”
Analysis and Findings of Fact
77In assessing each witnesses’ testimony, I must consider the credibility and reliability of the account provided. Credibility relates to a witness’s veracity. Reliability relates to the account’s accuracy and whether the witness is mistaken in their narrative. In assessing each witness’s testimonial account, I have considered the following factors:
(1) whether the account is inherently logical, having regard to common sense and human experience, using, as reference points, what the evidence reveals about the witness’s actions, words, and professed state of mind before, during and after the events that ground the allegations before the court;
(2) whether the account is internally consistent and coherent;
(3) whether the account is consistent with reliable evidence that exists exclusive of any witness’s account;
(4) the significance of any inconsistency in the witness’s account, e.g., is it in relation to a key or peripheral point, and to what extent does the evidence otherwise reveal a plausible explanation for it that serves to rehabilitate the account;
(5) whether the witness has an interest in the outcome of the case;
(6) whether the witness has a youth court or criminal record, the entries of which are probative of dishonesty;
(7) whether the witness, exclusive of the accused person before the court, has engaged in discreditable conduct that reflects poorly on his or her credibility or reliability;
(8) whether the reliability of the account is undermined by:
(a) the circumstances, including those specific to the observer and those specific to what is being observed, under which the observations that ground the account were made;
(b) a bona fide diminished recollection of the events over time;
(c) intentional and/or unintentional tainting by other sources of information; and
(d) any apparent mental, including cognitive and developmental, limitations that are probative of the account’s reliability or unreliability;
(9) the witness’s apparent level of sophistication and life experience, particularly as it relates to pre-testimonial contact, in any capacity, with the criminal justice system; and, to a lesser degree,
(10) the witness’s after-the-fact and/or testimonial demeanour.
(a) In assessing the former, I have been mindful of:
(i) the reliability and/or credibility of the individual who testified to the witness’s demeanour;
(ii) the lapse in time between the alleged offence and the observed demeanour;
(iii) any explanation unrelated to the commission of the alleged offence for the observed demeanour;
(iv) the witness’s capacity and/or any motive to feign their demeanour.
(b) In assessing the latter, I have been mindful that testimonial demeanour is of particularly limited value because it can be affected by factors entirely unrelated to the witness’s truthfulness and/or reliability, or lack thereof.
78As I assess a given witness’s testimonial account, I am mindful that I may accept some, none, or all of that account.
79In this case, I have completely disparate accounts from the complainant and J.B.P. I am mindful that well-established principles of common law preclude me from merely choosing between those conflicting accounts as I work toward my findings of fact. I am obliged to consider all of the evidence before arriving at my verdicts. I must avoid the stark alternatives approach of believing the Crown evidence or the defence evidence, which excludes the legitimate possibility of being unable to resolve conflicting evidence and, accordingly being left in a state of reasonable doubt on whether the Crown has proven the case.
80In a case with such conflicting accounts, it is impossible not to compare and contrast the evidence of R.R. with the evidence of J.B.P. Engaging in this kind of contrast and comparison does not reflect a misplacement of the burden, rather, it is a consideration of an accused’s evidence in light of the evidence as a whole, including a complainant’s evidence (see R. v. A.J.K., 2022 ONCA 487 and R. v. N.K., 2021 ONCA 13, at para. 10). The burden remains on the Crown to prove all of the essential elements beyond a reasonable doubt.
81In assessing the evidence of J.B.P., I am mindful that a reasoned acceptance of the evidence of R.R. may be a foundation for rejecting his evidence. I have considered the evidence of R.R., and all of the evidence, in assessing the evidence of J.B.P.
82J.B.P.'s evidence was lacking in most of the key indicia of credibility and reliability. While I appreciate that, on the main thrust of his evidence (which was outright denial of any of the alleged acts), he remained consistent, the rest of his evidence was fraught with illogical answers and inconsistencies. Some of these points were minor, but many of them relating to the opportunity for being alone with R.R. or the relationship he had with R.R. are not.
83Portions of his account are inherently illogical having regard to common sense and human experience, in particular when assessed against his own evidence as to his professed behaviour and state of mind:
(1) That R.R. was never at the Emperingham residence: this is inconsistent with his own testimony that he and N.H. took R.R. everywhere with them, and with the testimony as to the closeness of the families, in particular at that point of time when A.H. invited them to live with the family, which occurred when they had to move out of Emperingham;
(2) That he never played games or watched TV with R.R., which is also inconsistent with his professed relationship in which he treated R.R. “like a son.” This evidence is illogical, and it does not make sense. It does not accord with common sense and human experience. In particular, when he was residing with R.R. at Brenyon Way. It is also inconsistent with A.H.'s evidence, which I find does make sense. That R.R. and J.B.P. would regularly play videogames together in the Brenyon Way residence makes sense and accords with human experience, and I accept A.H.'s evidence on this point;
(3) That he was never alone at all in the Brenyon Way residence does not make sense. Even in a household with the number of people described, the adults had jobs, and S.H. and R.B.P. also had part-time work as well as school. It does not accord with common sense and human experience that he would never be alone in the residence. It is also inconsistent with his own evidence that he only used the computer at Brenyon Way when he was alone there; and,
(4) That he met with the babysitter who picked R.R. up in the street, and that she used her key or gave him a key to let him in. This evidence did not make any sense, nor does it accord with common sense and human experience. However, I appreciate this was a much less central point.
84Portions of his evidence also lacked internal consistency and coherence, in particular when he was pressed on points in cross-examination. In addition to the inconsistencies I have already referenced related to his evidence on his relationship with R.R., he was internally inconsistent when pressed on the details of his visits with N.H. at her aunt's apartment, stating in chief that they had engaged in intercourse there but then minimizing any of this activity significantly in cross-examination and claiming confusion when he was challenged with the inconsistency.
85Aside from the issue of the key, the rest of these illogical portions and inconsistencies in his evidence relate to key points of R.R.'s allegations. The evidence otherwise does not reveal any plausible explanations for these discrepancies that would serve to rehabilitate his testimony.
86J.B.P. has a criminal record for robbery, which is a crime of dishonesty. While I appreciate that record is dated, being from 2004, that entry is, in my view, probative of dishonesty.
87J.B.P. has a number of health issues, but they are not the type of issues that would impact his testimony or his ability to understand and answer questions. In my view, his memory or lack of memory changed at his convenience when it suited him, in particular when answering challenging cross-examination. For example, his evidence related to visiting N.H. at her aunt's apartment which changed to a “specific recollection” when he needed to confirm no one else was at home.
88In my view, J.B.P. was a savvy individual who attempted to use confusion, his health issues, and a lack of memory to his advantage in testimony. He also attempted to paint himself as a father figure who treated R.R. like a son, but then gave testimony that was of a person who treated R.R. like a stranger who he avoided as much as possible, clearly in order to bolster his suggestion that he did not have opportunity to commit these offences.
89When I assess J.B.P.'s evidence as I have outlined and in conjunction with all the evidence I heard at trial I find that it is not capable of belief, and I reject it. Nor does it raise a reasonable doubt.
90I also reject the evidence of M.B.P. As J.B.P.'s mother, I appreciate she has a specific interest in assisting her son through her evidence. But, more importantly, the evidence she gave did not make sense, conflicted with logic and human experience, and conflicted with the evidence of every other witness on material points. She did not know J.B.P. and N.H. had been a couple. She testified that her family moved into Brenyon Way after one conversation with A.H., whom she barely knew. This does not make any sense. Her teenage son and N.H. had dated since before R.R. was born, which was in July of 1996. They moved into the Brenyon Way residence in 2000 or 2001. That A.H. would offer this living arrangement to a family she was not close to does not make any sense. A.H.'s evidence about the closeness of the two families makes far more sense and is supported by the action of having them come and live with her.
91With respect to R.R. being her son’s godson, M.B.P. would not agree that J.B.P. had a godson at all. She only reluctantly and in cross-examination agreed that J.B.P. might have occasionally been at home by himself and that it was possible R.R. had been over when she wasn't home. Her evidence is lacking and unreliable, and I cannot accept it.
92I have similar issues with the evidence of R.B.P. She claimed she barely left the residence at 30 Livonia except to grocery shop. This is illogical and does not accord with common sense or human experience. She did not have any reason for remaining at home that would make sense, like a health issue. She also claimed that no one was ever alone at the Emperingham residence. When the family lived there she was in school and had a job at Sobeys and her mother also had full time work. These claims simply do not accord with human experience. They also don't make sense in the context of her family going to live with A.H. I cannot accept her evidence.
93I also find that their defence evidence does not leave me with a reasonable doubt. As I have already indicated, the claims that R.R. was never at these residences, that someone else would have always been at home, that J.B.P. was never at home alone: none accord with common sense and human experience.
94I accept the evidence of S.H. It was straightforward, logical and made sense. There was no internal inconsistency in her testimony. The routine she described of dropping R.R. off at school, and of J.B.P. sometimes being tasked with picking him up at school and watching R.R. until she could get home, makes sense. She also had the most reason to remember this routine at the Brenyon Way residence because it was she who had to be home by 4 PM in order for J.B.P. to leave. I accept her evidence that this babysitting arrangement existed a handful of times, including the day that J.B.P. made her uncomfortable when she came in and found J.B.P. at the computer and R.R. asleep on the one-seater couch.
95I also accept her evidence that R.R. would sometimes be babysat at Emperingham and that there was always another member of J.B.P.'s family present when she picked him up. That R.R. went to that house makes sense in the context to the family relationship in the time leading up to when A.H. invited them to move into her residence.
96I also accept the evidence of N.H. that J.B.P. babysat R.R. many times, that the three of them would be together, and then she would have to go to work, and J.B.P. would do the transition to when her mom or aunt took over. I accept her evidence that this included when the family was living with her aunt at 30 Livonia.
97N.H.'s evidence was straightforward, logical and made sense. There was no internal inconsistency in her testimony. It makes sense that her memory of the babysitting arrangement dealt with her part in it: being with J.B.P. and R.R., and then having to leave R.R. with J.B.P. while she went to work. I also accept her evidence that similar transitional babysitting occurred at the Brenyon Way address. This evidence accords with S.H.'s.
98N.H. did not recall a time when R.R. had walked in on her and J.B.P. having sex at that apartment, but acknowledged the opportunity had existed. I accept her evidence that she does not remember such an incident, which she testified would have been embarrassing for her.
99I also accept much of the evidence of A.H., which was also straightforward, logical and made sense. I accept her evidence about the relationship between the families, and that she would leave R.R. to be babysat at J.B.P.'s mother's house on Emperingham once in a while, and that his family had volunteered to look after R.R. when she needed help. This makes sense in the context of the families, and accords with logic and human experience of a family who she would shortly invite to live in her own home when they had to move from Emperingham.
100I also accept her evidence that J.B.P. would sometimes be alone with R.R. at the Brenyon Way address, playing video games in the basement or the living room. To the extent that her evidence was inconsistent with that of S.H. about R.R. being picked up at school by J.B.P. and watched at the Brenyon Way residence until S.H. got home, I prefer the evidence of S.H. who had a specific role in that routine and a reason to remember it.
101I also accept A.H.'s evidence that R.R. attended a birthday party at J.B.P.'s residence at 30 Livonia, and he stayed overnight to the next day. A.H. had attended that party herself. She had a specific and clear memory. And it makes sense she would remember the event as it was unusual that she would have let R.R. stay overnight.
102I turn then to the evidence of R.R. The Ontario Court of Appeal recently confirmed the approach to adult witnesses testifying about events that occurred when they were children in R. v. D.D., 2022 ONCA 786:
4In R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, it was affirmed that the evidence of children must be approached on a common sense basis bearing in mind their mental development, understanding and ability to communicate. “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: R. v. W. (R)., at para. 25. By way of illustration, the inability of the child complainant in R. v. W. (R.) to accurately describe the location of bedrooms in a house, a peripheral matter, was not significant to her credibility or reliability, since a child may not attend to such details: R. v. W. (R.), at para. 30.
5Even when adults testify about events that allegedly occurred when they were children, such considerations remain relevant. This is logical. If a witness would not likely have noted the thing as a child, their failure to relate that thing years later while testifying as an adult cannot meaningfully unsettle the credibility or reliability of their evidence. Therefore, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying” (emphasis added): R. v. W. (R.), at para. 27.
6However, “[in] general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness”: R. v. W. (R.), at para. 27.
103R.R. was 26-years old when he testified to events that were alleged to have occurred when he was between the ages of four and six. He tried at times in his testimony to recount what he had been thinking when he was a child, but had also clearly processed the events through the lens of an adult, and would use adult terminology to explain. I am conscious of approaching his evidence as that of an adult who noted the events in question as a young child.
104R.R.'s evidence was inherently logical, having regard to common sense and human experience. What he described of the babysitting arrangements, after school or while N.H. had to go to work, makes sense and accords with the other evidence of how his family was dealing with his childcare. Wanting to watch cartoons, play videogames, wanting to hang out with J.B.P. who would do these things with him, all of this makes sense. His evidence about the assaults beginning with pornography, shifting to J.B.P. exposing himself, to guiding R.R.'s hand to his privates, to guiding R.R.'s mouth to his privates, this also makes sense and accords with human experience.
105R.R.'s account was also mostly internally consistent and coherent. It did not shift or change when subjected to cross-examination. One major area of inconsistency with the other evidence does exist: the order of residences. It is clear that J.B.P. lived at Emperingham first and not last. On this point, the order of residence, R.R. is clearly mistaken. However, this issue, the timing and order of assaults, is exactly the type of inconsistency that might be expected in how a child experiences the world. It does not cause me to doubt the veracity of his recollections. A second inconsistency is that R.R. testified that J.B.P. and his family did not live with R.R.'s family for a few months. This is again an inconsistency that is explainable by R.R.'s age at the time, as it is exactly the type of temporary living arrangement that a child might not understand at the time or recall 20 years later.
106I have further considered the inconsistency in R.R.'s evidence with that of N.H. that she told him to close the door when he walked in on her and J.B.P. N.H.'s evidence was that she did not recall an event where R.R. had interrupted them. In my view, this discrepancy is a minor inconsistency which accords with the passage of time. The important part of this event is that R.R. walked in on them. That he remembers her acknowledging he had done so by saying to close the door does not cause me to doubt his evidence about what happened on that date. I accept that R.R. did walk in on them and prefer his evidence on this point, and note it is not inconsistent with N.H. who agreed it was possible this had happened.
107I note that R.R.’s evidence was also inconsistent with S.H.’s evidence about whether his aunt was working when they were residing with her in her apartment at 30 Livonia Place. S.H testified that her aunt did not have a job. In my view, this is a minor inconsistency with R.R.’s evidence. I accept S.H.’s evidence that her aunt was not working, but the inconsistency that R.R. believed his aunt was out of the apartment working is they type of detail that one might expect a child to remember incorrectly 20 years later.
108I accept R.R.'s evidence of the sexual assault from his aunt's apartment at 30 Livonia in or around June of 2001 when he would have been four years old. His description of how J.B.P. came to play the pornography, to move closer, and to lead him into an act of oral sex was compelling and believable. His evidence about how he felt, trying to explain his young reaction, and that he went to the bathroom and spat it out, was similarly compelling and believable.
109I further accept R.R.'s evidence about the sexual assault from Brenyon Way in September of 2001 when he would have been five. His testimony about J.B.P. being on the computer and calling him over, and of being guided under the desk but not really understanding as a five-year old why he was doing it, made sense. They accord with human experience. Portions of his testimony from this day were also confirmed in S.H.'s evidence, that she came home and J.B.P. was on the computer and R.R. was asleep on the couch.
110I have considered the suggestion that there was insufficient time and that it would have been reckless for J.B.P. to engage in this assault given that he did not know exactly when someone might come home. There was a half an hour of time, possibly longer, before S.H. came home. R.R.'s description of the timing of these assaults was that it took only minutes. That also accords with human experience and common sense. I agree that it may have been reckless to engage in this behaviour given that anyone might come home; human experience discloses that people often behave irrationally or recklessly when it comes to fulfilling their sexual desires. I am not persuaded that the level of risk involved in this should cause me to have a doubt about R.R.'s depiction.
111I also accept R.R.'s evidence about the sexual assaults at 30 Livonia when he had requested a sleepover in the fall of 2001 when he was five-years old. I note that J.B.P. agreed in his testimony that they had moved to this address in November of 2001. R.R. remembered this apartment being on the ground floor, and described it consistently with how other witnesses described it. If neither R.R. nor A.H. had been to the apartment, which was the defence suggestion, it would not make sense that R.R. would know it was a ground-floor apartment.
112To the extent that R.R.'s evidence is inconsistent with that of A.H. about how this sleepover came to occur, I prefer the evidence of A.H. As I indicated, she had reason to recall that unusual event. And it would make sense that R.R. would not remember that it was a birthday party that had been the initiating event as he was only five-years old at the time.
113I have considered the defence submission that R.R. acted contrary to how he would have been expected to act if the first assaults had occurred when he asked for this sleepover or sought out this time with J.B.P. There is no correct or appropriate standard for a victim of sexual assault. That R.R. would have had complex feelings about being assaulted in this way by a man who had been acting as a father figure to him and that he trusted makes sense to me. And R.R. tried his best as an adult to explain this. There were points in cross-examination when he acknowledged that it doesn't appear to make sense that he would want to continue seeing J.B.P. On these points, he agreed with those reasonable suggestions.
114I have also considered the defence suggestion that there would not have been opportunity for these assaults. There is nothing about A.H.'s evidence of attending a child's birthday party that would prevent J.B.P. and R.R. from being alone later, after R.R. had fallen asleep for a time, when he then got up and came out to watch wrestling with J.B.P. I appreciate that there were likely other persons at home in the apartment, but I accept R.R.'s evidence that he and J.B.P. were alone on the couch watching wrestling and had been for some time before J.B.P. played pornography and led R.R. into the sexual acts. I further accept his evidence that the assaults continued in J.B.P.'s bed after. R.R.'s recollection of this bed being a single bed makes sense to me. It accords with his descriptions of how he felt at the time, hat this man he had trusted was engaging in these assaults. He said J.B.P. felt close to him, just an inch apart, while he was groaning and moaning. That has the ring of truth to it.
115Finally, I have considered R.R.'s evidence about the Emperingham assaults. R.R. testified to these being the last assaults, occurring when he was six years old. The evidence as a whole shows that J.B.P. was no longer residing at the Emperingham residence at this time, but had resided there prior to Brenyon Way.
116The Information particularizes the date range for these offences as January 1 to December 31, 2002. The Crown submits that the date range is immaterial and that there should be a finding of guilt for these offences, even through they are outside of the date range particularized in the Information. The leading judgment in the area is R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58. Wilson J., held that Section 601(4.1)(a) of the Criminal Code (as it now is) is a complete answer to a time variance like that in this case. It provides that a difference between the indictment and the evidence is “not material with respect to the time when the offence is alleged to have been committed.” There is one important caveat. Wilson J., said at paragraph 42:
... it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence, unless the time of the offence is critical and the accused may be misled by the variance, and therefore prejudiced in his or her defence. It is also clear from Dossi, supra, and other authorities that the date of the offence need not be proven in order for a conviction to result, unless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain a conviction, it is, I believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence. What the Crown must prove will, however, of necessity vary with the nature of the offence charged and the surrounding circumstances. Time may be an essential element of the offence in some circumstances ...
117In R. v. S.D., 2011 SCC 14, the Supreme Court upheld a conviction for a sexual assault outside of the date range in an Information on the basis that the trial judge found that the assault occurred, and credibility had been the only issue raised, so there was no prejudice to the accused.
118In the case before me, the defence presented evidence to contradict R.R.'s allegations on the basis that the family was not living at that residence at the time for the purpose of attacking his credibility and reliability. The thrust of that attack in cross-examination of the Crown witnesses and in the evidence presented by the defence on this issue, was that R.R. had never been to that residence when J.B.P.'s family was living there. I am satisfied that there has been no prejudice to the accused from the discrepancy between the indictment and the evidence. The defence was conducted in a manner to attempt to rebut opportunity to have committed the offences whenever they occurred. There was no alibi-type defence raised. Time was not essential.
119I accept R.R.'s evidence about the Emperingham assault and find that it did occur. The primary inconsistency in his testimony about this offence is the location or timing of it, believing that Emperingham was the last place that an assault had occurred, even though J.B.P. was no longer living there. This inconsistency in location mixed with time is, in my view, a discrepancy that makes sense since children may experience the world differently from adults. It is hardly surprising that details important to adults, like the order of time and place, may be incorrect in his recollection.
120In assessing the evidence, I have considered two further submissions made by the defence related to the assessment of R.R.'s credibility. The first is in relation to the evidence of R.R. reaching out to J.B.P. by Facebook and telephone, and wanting to see him or have a sleepover. I have considered the submission that this does not accord with his stated feelings about J.B.P. after the assaults or with common sense.
121I agree that it does not completely accord with what he said of his feelings for J.B.P. in testimony; that he was angry and hurt by what had happened. However, I am mindful again that there is no objective standard for how a victim of assaults like this should think, act or feel. I accept R.R.'s testimony, which I note he had difficulty verbalizing, that he had complex and sometimes conflicting feelings about J.B.P. That he could be hurt by him and still want to see him. This makes sense to me given the nature of their relationship when R.R. experienced these assaults. It also makes sense that R.R. would reach out to J.B.P. at around the same time that he was coming to the point of disclosing these events to his family.
122The second submission is that J.B.P.'s rejection of these communications provided a reason for R.R. to fabricate these allegations. This is not a case in which there is a proven absence of a reason to fabricate, but I am not persuaded that R.R.'s evidence is a fabrication, nor do I have any reasonable doubt based on this as a possible motive or animus to fabricate. I do not accept that R.R. fabricated his allegations after being rebuffed by J.B.P.
123I am satisfied on the basis of the evidence that I have accepted that the Crown has proven that sexual assaults occurred at 30 Livonia Place in R.R.'s aunt's apartment, at Brenyon Way, at J.B.P.'s apartment at 30 Livonia Place, and at Emperingham. Each of these was for a sexual purpose on a person under the age of 16 years. Each of these involved J.B.P. guiding R.R. into the sex acts, amounting to an invitation sexual touching. All counts have been proven beyond a reasonable doubt and findings of guilt are entered on each.
Released: December 28, 2022
Signed: Justice R. Wright