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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

DATE: 2023-11-14 COURT FILE No.: 0411-998-22-5028

B E T W E E N :

HIS MAJESTY THE KING

— AND —

RALPH KING

Before: Justice F. FINNESTAD

Heard on: July 20, 21, 24, 25, 26, 27 and August 28, 2023 Reasons for Judgment released on: Tuesday, November 14th, 2023

Counsel: Ms. Julia Dales .................................................................................... counsel for the Crown Ms. Celine Dostaler ....................................................................... counsel for the accused

F. FINNESTAD J.:

Background

[1] Ralph King is charged with three counts of sexual assault. These are alleged to have been committed in the spring of 2021 against women for whom he was performing a spiritual healing ceremony, privately and by appointment, at the Wabano Centre for Aboriginal Health in the Ottawa area. Mr. King was at the time a guest medicine man and spiritual healer, whose visit was advertised in advance by way of posters and email. The initial offering was to community members, but when there were some spots yet unfilled, they were offered to Wabano staff as well.

[2] The healing ceremony which Mr. King performed and had performed for tens of thousands of other people over the years, involved placing a hollowed-out deer bone on areas deemed to be sources of negative energy within a person’s body. He would then suck out that negative energy, turn from them, and blow or spit it away.

[3] None of the complainants had ever participated in such a ceremony before and did not know exactly how it would transpire. Each went seeking spiritual healing for personal issues, and each ultimately felt she had received some benefit, whether it was the gaining of some knowledge or the removal of energy that was negatively impacting her life.

[4] Each of the three complainants testified that in addition to placing a deer bone on their body with one hand, Mr. King put his other hand on them, touching areas such as the breast, buttocks and between the legs. Each described a feeling of significant discomfort with this touching. Each remonstrated with herself for having these feelings when a trusted person was performing a sacred ceremony for them, and faulted herself for having a negative reaction to touching which wouldn’t have happened if it were not a necessary and proper part of the healing ceremony. None voiced a complaint to Mr. King.

[5] Each of the three complainants later heard through a healing circle, or other women in the community, that there were others complaining that Mr. King had touched them improperly with his hand. They then went to the police with their own complaints. While this information was elicited from the witnesses it was not specifically suggested that any of them had been influenced to fabricate or exaggerate their own experiences as a result of this exposure. The effect of hearing the complaints of others on the credibility or reliability of the complainants will be considered later.

[6] Mr. King was adamant that he never touched any of the complainants with a hand, but only with the deer bone, as part of the ceremony. He testified that it would be completely inappropriate for a medicine man to touch a person with his hand while performing this ceremony. Implicit in this was an agreement that if such a touching occurred it would have been a wrongful one.

The role of Mr. King as a medicine man and spiritual healer

[7] Mr. King began his training as a medicine man at the age of 14 and he was 60 years old at the time of trial. It took him many years to learn the ceremonies to be performed, and he continues to learn with respect to formulae for creating medicines. He estimated that he has performed between 25,000 and 50,000 healing ceremonies over his time as a medicine man.

[8] It was agreed by all witnesses that a medicine man holds a special and sacred place in the Indigenous community, regardless of that community’s own individual traditions. There are very few medicine men in any community, and none in some. They are highly regarded and well respected. While there was some conflicting evidence as to whether Mr. King had been held out at any point as also being an elder, ultimately the relevant and uncontested fact is that Mr. King was a person in whom much trust, respect and confidence was placed by virtue of the role he held.

[9] It was agreed by all witnesses that on the dates in question the three complainants had appointments to meet with Mr. King in the Cedar Lodge for purposes of spiritual healing. Each complainant described approaching Mr. King with respect, in a sacred place, for a confidential and spiritual experience. Each described her trust in his wisdom and expertise, and her belief that she would benefit spiritually from the interaction to come.

Conduct of a healing ceremony

[10] Mr. King described all of his appointments as a spiritual healer at Wabano as following the same basic pattern he had followed over the years. He began with conversation about what brought the person to him while he prepared his medicines, then smudged himself and his items. He then asked to smudge the person he was seeing. This was followed by the use of shakers to summon the spirits he felt appropriate for the ceremony. Beginning with the head, he would scan the person’s body with his hands 8 - 10” away from the person, looking for trouble spots. When he found an area needing attention he would stop and place a deer bone over the spot, put his mouth to it and suck the negative energy from that spot. He would turn away and spit the energy into a bowl containing whiskey. At the end of the ceremony, he would smudge his hands and mouth, and empty the contents of the bowl into a jar, to be later burned. He testified that while his specific recollection of the appointments in question was not perfect, he was confident that he had followed this pattern on the days in question, as it was a long-established practice.

[11] The complainants did not recall specifically every part of the ceremony or the order in which it occurred. Given Mr. King’s long-established routine, what the complainants did remember and what they agreed was possible, I accept that this order of events was followed in most, if not all, particulars in their meetings with Mr. King. This includes the preparation of medicines, the smudgings and the use of the shakers, before the bone was produced to suck out negative energy and spit into a bowl. I accept that he likely performed a scan of their bodies with a hand, without touching them, before using the deer bone.

[12] Mr. King testified that touching with a hand was not part of the healing ceremony and he would not have done so.

Allegations with respect to the healing ceremonies of the three complainants

[13] Mr. King testified that over the years of performing healing ceremonies he ordinarily has a second person with him in the room throughout. Wabano however, for reasons which were not given to the Court, would not allow it. Accordingly, there is only the evidence of Mr. King and each complainant with respect to what occurred in the course of their time together in the Cedar Lodge.

[14] Mr. King testified that he asked for consent before he placed the bone at each spot on each woman’s body. The evidence of the complainants differed as to whether he asked consent, simply announced that the bone would (or must) be placed somewhere, or said nothing, before placing it.

[15] The issue of whether consent to touching with the hand was obtained is irrelevant, as the defence evidence was that no touching with the hand occurred, and that for a medicine man to touch a person with his hand during this ceremony would be inappropriate in and of itself. No consent could properly be sought or given to such touching.

[16] The issue of whether consent to touching with the bone was obtained is irrelevant, as no one challenged that this was an appropriate part of a healing ceremony to remove negative energy from the body, and one in which the complainants willingly engaged. I find that there was implicit consent to all parts of the ceremony that were properly performed with the bone, whether it was explicitly sought and given before any touching with the bone or not.

[17] Any difference among witnesses respecting consent to touching with the bone has little effect on the credibility of those witnesses; no one has a perfect recall of details with the passage of time, and recollections of whether there was explicit consent to acts for which there was implicit consent may easily fade with time.

1. The ceremony involving A.E.

[18] Ms. E. worked in a number of roles at Wabano. When Mr. King arrived for his visit, there were some spots as yet unfilled by community members and Ms. E was able to gain one of those offered to employees. She described herself as a very spiritual person. She felt that a spiritual healer was someone from whom she could get spiritual information and guidance; that he could communicate with those who have passed and “tell her things she could do to stop hurting”. She described having both high respect and trust for someone with such gifts from the Creator. The meeting was in the Cedar Lodge, a sacred place at Wabano.

[19] Ms. E. described her need for spiritual healing as arising from personal relationship issues, not knowing which direction to go, and feeling that her spirit was tired.

[20] Ms. E. described a memorable beginning to her meeting with Mr. King. She testified that when she walked in Mr. King said immediately “oh you don’t want to be a woman, you want to be a man and have felt like that for a long time”. She was overwhelmed; that had been a thought of hers and she found him very perceptive. However, that was not what she was there to talk about that day and she told him so. He said repeatedly that she didn’t like her breasts and should “just cut ‘em off” which accompanying gestures. She laughed awkwardly but he kept repeating it until she repeated his words and gestures back, and he then moved on.

[21] Mr. King testified that Ms. E. walked in and announced as she sat down that she hated men. After the ceremony he brought up the issue of her transitioning gender as he could see it was an issue for her. He did mention an operation to remove breasts but did not say “cut ‘em off” repeatedly although he may have gestured to illustrate this.

[22] Ms. E. described the ceremony. Mr. King told her that he would use a deer bone to suck out negative energy and she assumed that the bone would come between them and that he would not be touching her himself. She described a ceremony much as the other complainants and Mr. King did, with the bone being placed numerous places, negative energy being sucked out and spat into a bowl.

[23] However, Ms. E. testified that when Mr. King put the bone to her breast with one hand, he placed his other hand on her breast, walking his fingers over to the centre of the chest and then down the side. He followed this up with the described sucking actions through the bone at her stomach area and groin area. She was clear that by the groin area she did not mean between her legs but at the thigh. This whole process was repeated a second and third time.

[24] Ms. E. described her conflicted feelings at the time and afterward in some detail.

[25] She testified that she was feeling very tense about being touched by someone else’s hand in private places. She was uncomfortable but didn’t want to say anything because she didn’t know the rituals of Mr. King’s culture and didn’t want to be rude or ignorant. She testified that it may have been only a few minutes, but it felt like forever. She felt frightened, unsure what was happening and wanted it to be over. She felt like she was going to be molested or raped and her heart was racing and her body growing tight. She kept trying to push the feelings away because she was there with a spiritual healer and shouldn’t be feeling that way. She said that she condemned herself for her negative reaction to the touching. When he was finished the ceremony, she told him she had had things happen to her as a child and thanked him for not going any further than his touching had done as it made her very nervous. She testified that she worried that her own reaction was as a result of misreading things; that she was being triggered by her own “wound that wasn’t healed”.

[26] Ms. E. concluded that she felt “weirded out” by the experience but told herself that she shouldn’t be feeling like that, especially after he confided that he too had been abused as a child. She said that she respected him and learned from him and was thankful for that. She felt guilty for feeling violated or that something was wrong, when this medicine man was performing a spiritual healing for her.

[27] Ms. E. said Mr. King asked for a hug before she left and she concluded from this that he was “probably a nice guy” whose actions she was misreading, until she felt the hug went on too long and she had to drop her own arms to bring it to an end. Mr. King said Ms. E. asked for the hug, about which he was reluctant, given her man-hating statement.

[28] I found Ms. E. to be a compelling witness. I found her intelligent and articulate. While her memory was refreshed by inconsistent statements, she had made to police relating to information provided by Mr. King, or consent about some touching with the bone, she was consistent and unshaken on her evidence with respect to being touched with the hand to the breast several times.

[29] Mr. King agreed that he raised the subject of breast removal and may have gestured to describe it but that he did not say “cut ‘em off”. I am satisfied that this was a more memorable conversation for Ms. E than Mr. King and I accept her strong recollection of it as accurate.

[30] The entire event was memorable for Ms. E. and her reaction profound. She went into this ceremony in a spirit of hope and trust and wanted desperately to be mistaken when she felt that the touching was wrong, initially blaming her reaction on her own “unhealed wounds” rather than his actions. She made great efforts to discount her own feelings and to give Mr. King the benefit of the doubt because of the great respect she held for him.

[31] The reaction she described to the touching and the reasons therefore were credible. There was nothing to suggest fabrication or exaggeration. Her evidence had the strong ring of truth and I accept it as credible and reliable.

[32] Mr. King remembered some events surrounding the touching with the bone differently and with respect to each of them I accept that recollections may differ without affecting the credibility of a witness. However, Mr. King testified that not once did he place a hand on Ms. E.’s body, nor did he place the bone over her breast or her heart. This denial comes in the face of compelling reasons for remembering and reacting to such touching, as recounted by a highly credible witness.

2. The ceremony involving K.P- S

[33] Ms. P-S is originally from the Philippines but felt a deep connection to Canadian Indigenous people and their spirituality when she began working with them in Canada. She worked at Wabano as a child clinical therapist from October 2016 to 2021 and was one of those employees to whom an unfilled appointment with Mr. King was offered.

[34] Ms. P-S testified that she had heard Mr. King speak at Wabano before and been drawn to how he had been doing this for years. Several people told her he was very good at what he did and she should go see him.

[35] Ms. P-S testified that at their meeting she told Mr. King that she needed help with sleeping, arthritis and with finding her voice. He showed her a deer bone he said he would use to suck out negative energy. She thought he would be doing this figuratively as it was during covid, and while she cowered a bit when he came close, she concluded that “this is probably what needs to be done”. She said that it was possible that he did a scan of her body and indicated parts that needed work. He applied the bone to many parts of her head and body, following the sucking and spitting process. In the process of doing this he put his hand on her breast along with the bone. He cupped her buttocks while placing the bone on them with the other hand.

[36] She testified that he said he was going to put the deer bone on her breast and asked if that was ok but he did not say he was also going to put his hands on her. He rested his hand on one breast while using the bone with the other, on each of her breasts. He knelt and ask if he could put the deer bone at her buttocks and she agreed awkwardly. He put the bone on her buttocks but also put a hand there, cupping each buttock. She felt very uncomfortable but justified his actions on the basis that he must know what he was doing.

[37] She described feeling that this was “weird” but as she trusted him and his position. She told herself that this must be how it supposed to be done; part of the protocol. She had seen about ten healers previous to this appointment and never been touched by one before. She testified that her brain overrode her discomfort, saying this was probably what elders do.

[38] She felt awkward when he asked for a hug at the end, but it was a brief hug and she concluded it was no big deal. She felt that he was knowledgeable and that she had been given some wisdom from him and so thought nothing of her initial feelings when the session was over. She thanked him and left.

[39] Ms. P-S booked a second appointment hoping to learn more from Mr. King and to improve the burnt-out feeling she was getting from her job. She felt she’d learned something and had some negative energy she needed to get out.

[40] She testified that much was the same at the second appointment but that on this occasion he also put his hand on her groin and the bone at her pelvis. It was not a light touch but one with pressure. His hand went between her legs and covered her entire vaginal area. The hand didn’t move but just stayed there for what felt like her to be “forever”. She testified that no one but her husband had ever touched her there and she was shocked. She described herself as feeling “very slimy, very uncomfortable, like throwing up”. His face came very close to her as the deer bone was quite short and his cheek and head made contact with her.

[41] After the session ended, he asked for a hug. She agreed given the brief and not uncomfortable experience with the last hug. This time he wouldn’t let go until she pushed him away. She said that she grabbed her shoes and ran.

[42] Ms. P-S. described her feelings afterward. “I felt very uncomfortable and odd and it was strange behaviour. I felt ashamed and humiliated and I thought I’m not going to tell anyone about this.”

[43] Given her rationalization of the apparent need for the touching and her probable overreaction, she did not think anything inappropriate had happened until a colleague told her of an allegation of Mr. King exposing himself to someone and asking if anything had happened to her. She saw the colleague’s own incident report before deleting it and creating her own report. Further she attended a healing circle later where she described being touched by a bone and a hand, and heard others described their experiences as well. It was not suggested to her that based on hearing the stories of others she changed a memory of touching with a bone into one of being touched with a hand, and there was nothing in her evidence to suggest that this was so.

[44] Mr. King described a similar ceremony with respect to the use of the bone. However, he said that he never touched her breasts, buttocks or groin area with either the bone or his hand. He did not recall the second meeting but testified that it would have been the same. In cross-examination he agreed that he told her he was going to put the bone on her breast and asked if that was ok. He did not remember putting the bone on her buttocks and said he “never” goes into that area even if the scan hits on that as an area of negative energy needing work. He subsequently said that he didn’t think he put the deer bone on her buttocks but that it was possible. When it was suggested that he put his hand on her buttocks while the deer bone was there, he said “I don’t do that either, its always the deer bone”. Later when asked if he disagreed that he had put the bone on her buttocks in the second appointment he said that “it was possible”.

[45] Ms. P-S came across as a credible witness. She too went into the healing ceremony in a spirit of faith and trust. She was shocked by being touched in intimate areas but, like Ms. E., her respect for Mr. King was such that it overrode her own reactions and she questioned herself rather than him. Her descriptions of his actions and her own reactions had the ring of truth. She had reasons for remembering what she did, and her account was not shaken. Mr. King’s absolute denial of touching any of those areas with the bone wavered on cross-examination., and he admitted it was possible that he did things which in examination in chief he said that he never did.

[46] I accept Ms. P-S’s evidence as plausible, given by a credible witness and unshaken on cross-examination. In the face of this compelling evidence, Mr. King’s evidence was a denial with demonstrated inconsistencies on material points.

3. The ceremony involving M.S.

[47] M.S.’s appointment came about because her daughter worked at Wabano. She understood Mr. King to be an elder, and someone she would “hold as sacred”, and “look to for direction when making life decisions”. Her reason for seeing this spiritual healer was for help in dealing with trauma from childhood sexual abuse. She had not seen a healer before and did not know what would happen. She was hopeful and excited about the possibility of healing from this trauma.

[48] Ms. S. testified that she was very emotional and crying during the ceremony. She said that Mr. King explained that with the deer bone he would pull the trauma from her, suck it out and blow it away. As he approached each application of the bone he would tell her where he was putting it.

[49] She testified that he told her he had to move her breast to get at the trauma. When he put the bone on her breast his other hand was touching the breast. He was near her buttocks and then put his hand on her inner thigh and around her vaginal area. She could not remember how many times he touched her breasts, buttocks and vaginal area with his hand. The first time he touched the vaginal area it was a light touch but became more firm over several touches. She could not remember if he asked permission or simply said that this was what had to happen and he hoped she was ok with it. He was very close with his face and the bone.

[50] She testified that she did not know if this was the right way to remove her childhood trauma, but he said that it was, so she gave consent or did not respond negatively to his comments about what he was doing. In this way the evidence of Ms. S differs from the other complainants. She described touching in sexual areas and giving consent to it because she was told that this was necessary to remove the trauma caused by childhood abuse. She testified that these parts of the ceremony felt “weird” but she wondered if it was her own past trauma that made her question it.

[51] When Ms. S was later confronted by her daughter telling her that Mr. King was a sexual predator her first reaction was an angry denial. While she did not attend any healing circles she was aware that others were making complaints.

[52] The fact that Ms. S consented to the touching in sexual areas raises the issue of whether it was an informed consent. It would be one thing if Mr. King testified that he had to do this in order to heal Ms. S from her childhood trauma and that she consented to this necessary touching. However he denied ever doing this touching, said that he was unqualified to deal with this sort of trauma, and that it would have been inappropriate to have done this touching. Accordingly, if I find that the touching occurred, but that it was done with consent, then it would be on the basis of consent obtained through fraud. Based on the evidence of both witnesses there could not have been consent to this as a necessary and appropriate part of treatment, but rather an inappropriate touching.

[53] In cross-examination, Ms. S was shown her statement wherein she said that when his fist touched her vaginal area he said “oh I didn’t mean that. That’s where the trauma is”. She had denied him making this statement in her evidence. This is an inconsistency in her evidence but not one that challenges her account of being touched; only of whether Mr. King apologized for so doing. Mr. King denied that there was any touching that required an apology. This inconsistency is not of great moment.

[54] Ms. S.’ s statement was also inconsistent with her testimony with respect to whether Mr. King asked her if it was ok as he touched certain parts. When shown her statement to police she conceded that she had said that he had asked that question. Again, while this challenges her recollection of details, it does not challenge her evidence of being touched in those areas as part of the ceremony.

[55] I found Ms. S. to be argumentative and evasive at points in her evidence, often points that were not of great relevance or significance. Her evidence was not as straightforward as that of the other two Crown witnesses. This attitude came out in questions about indigenous ceremonies, and more significantly with respect to her conversations and dealings with Mr. King after the ceremony. The two had a text relationship for a period of time afterwards. Mr. King admitted to a sexual interest in Ms. S. formed after the ceremony had occurred. Ms. S. testified that she felt awkward and was simply responding to joke and put Mr. King off. She was confused as to the role he had in her life, and felt throughout that he was an elder. I am unclear as to what to make of their text conversations but none of that affects the question of whether Mr. King touched Ms. S. in intimate areas, representing that this was an essential part of healing. It appears from the texts that while Ms. S. occasionally responds in what might be seen as “in kind” it is Mr. King who for the most part initiates sexual comments. Those initiated by Ms. S. are plausibly responses to what she thought Mr. King was saying. Even if Ms. S. subsequently had an interest in Mr. King, which I do not find, that interest expressed afterwards has no bearing on whether the touching done at the healing ceremony was appropriate or with informed consent.

[56] Mr. King testified that while he was not qualified to deal with the issue that brought Ms. S. to him, he was able to do a more general spiritual healing. He did not tell Ms. S. that he could not help her with the primary problem that brought her to him, nor did he refer her elsewhere for help. He said that in the course of the ceremony with Ms. S. he put the bone to her chest and her buttocks. This was despite saying earlier in his evidence that he “never goes into that area”. I view this as a significant contradiction.

[57] I found the evidence of Ms. S. to be credible with respect to the touching she tolerated as she wept through what she believed was a healing from the trauma associated with childhood sexual abuse. She too found reasons to justify Mr. King’s behaviour as a healer. Mr. King does not suggest that those actions are justified as a healer; he says that they did not occur.

[58] Ms. S. had reasons for seeing Mr. King and the touching she described from him was directly related to those reasons. Her testimony was plausible. His testimony of performing a routine ceremony does not ring true in this context.

The evidence of Mr. King

[59] Mr. King did not disagree substantially with the recollections of the three complainants about why they came to see him or the fact that he followed his usual practice of sucking in and spitting out negative energy at various points of their bodies. He differed in that he denied touching any of the women with his hand, as he had never in all his years as a medicine man done that.

[60] Mr. King has performed tens of thousands of such ceremonies over the years. It is surprising that he remembers some details of these visits and not surprising that he forgets others. I found somewhat perplexing that he professed to have no recollection whatsoever of the second session with Ms. P-S even after hearing her testify about it. For the most part, his testimony relied on what is his usual practice; the routine in the ceremony and the fact that he never touches a person with his hand.

[61] Mr. King’s evidence revealed some inconsistencies on material points. In chief he testified that he did not touch Ms. E.’s breast with the bone. In cross-examination he agreed that he had.

[62] He testified that it was not possible that he put the deer bone on Ms. S.’s buttocks as he didn’t “go to that area”. He said that he “never” put a deer bone on anyone’s buttocks, even if his scan revealed that as a problem area. He subsequently agreed that it was possible that he put the deer bone on her buttocks.

[63] Mr. King testified that his actions in the Cedar Lodge were at all times professional and in accordance with what he described as proper procedures. In cross-examination he agreed that it was inappropriate for a medicine man to subsequently flirt with a woman whom he had just met when she was seeking help for trauma from sexual abuse. He agreed that when Ms. S. gave as her sole reason for meeting with him to recover from this trauma, he ought to have advised her that he could not assist with that, and refer her to an expert in that field. Instead, he performed a healing ceremony. In fact, he performed a ceremony that he was qualified to do for the purpose of helping her to heal. However, while he knew that he could not deal with the reason she was there, he did not tell her that, or that his ceremony would be of no assistance with that particular problem.

[64] He agreed in cross-examination that when Ms. P-S, the child psychologist, asked if their discussions would be kept confidential he responded “fuck yeah”. This response took her aback. He agreed that he told Ms. S. shortly after their ceremony that he had “checked out her ass” when they met. Each woman described him asking for her phone number and for a hug. All of these things contradict his evidence of dealing completely professionally with each complainant. His reliance on his professionalism was a strong part of his assertion of touching with a hand did not happen as that would not be appropriate for a medicine man.

[65] I did not find Mr. King’s general assertions of touching only with the bone and acting strictly professionally to be credible. He was contradicted not only by the credible evidence of the complainants, but by his own admissions.

The effect on the credibility of the complainants’ evidence as a result of hearing of the complaints of other women

[66] I do not understand there to be a suggestion that the complainants actually colluded to fabricate their stories together, but that there was an opportunity to be influenced, even inadvertently, by hearing that others had complained, and hearing some of those details.

[67] An assessment of the effect of this exposure to the complaints of others on the credibility or reliability of the witnesses, is influenced by the nature of what they described experiencing.

[68] If it was agreed by all that some touching with the hands was part of the ceremony and the complainants, after hearing from others, decided that this admitted touching went beyond the scope of the ceremony, that would be one thing. That would require me to determine whether that touching with the hands was a proper part of this ceremony. It would cause me concern about the reliability of the complainants’ evidence, because their perceptions about the nature of what Mr. King agreed had happened, was potentially influenced by others after the fact.

[69] However, Mr. King denied absolutely touching any of the complainants with a hand. In fact, he testified that it would have been completely inappropriate for a medicine man to touch a person with his hand under those circumstances.

[70] The issue is then not whether touching was legitimately a part of the ceremony or not, but whether it occurred at all. If the complainants were to be influenced by the statements of others, it would not then be simply a changed perception of the nature of what everyone agreed had occurred, it would be a changed perception of what had actually physically occurred. If Mr. King never touched them, and they were influenced by the stories of others, it would have to be to the extent that it caused each of them to fabricate that touching with the hand occurred at all. This complete and wanton fabrication was not suggested to them nor do I find any basis for it in the evidence. Accordingly, I do not find that their evidence is tainted by hearing that others complained of Mr. King’s conduct. It was simply their motivation to take action and recognize that their own feelings of discomfort had validity.

Similar fact evidence

[71] The Crown successfully brought an application to have the evidence on each count considered on the others. This related to each interaction with Mr. King occurring in the context of a healing ceremony where he was the trusted authority figure, and where he used a deer bone on the body in identical ceremonies to remove negative energy. In fact Mr. King relied on the similarity of these interactions in asserting his usual practice being one he would have implemented with each complainant. The fact that each followed the same pattern enabled him to recall that he would not have touched any of the women with his hand.

[72] Each complainant testified that Mr. King asked for a hug at the end of the session. Ms. E and Ms. P-S described the hug as going on so uncomfortably long that they had to take action to end it. Mr. King testified that each of the women requested a hug of him.

[73] In my view the consistency among the evidence of the three women on this point supports the veracity of it. It is unlikely that three women would be mistaken or telling the same lie about something that had no effect on the allegations of the touching themselves.

[74] The same is true of each complainant testifying that Mr. King asked for their phone number and secured it by having them send him a text to which he immediately responded. Mr. King testified that two complainants asked for his phone number and the third got it from a friend of his. Again, it defies coincidence that all three women would describe a request for a phone number, a relatively minor matter, being fulfilled in exactly this manner if it were not the truth.

[75] This similarity causes me to accept the evidence of the complainants on these two points and to reject as not credible Mr. King’s evidence to the contrary.

[76] Each of the three complainants testified to going into the ceremony accepting whatever this respected man felt it necessary to do. Each described being touched not just with the bone, but with the hand in intimate areas that Mr. King described it to be inappropriate to touch. Each described a credible reaction. Each described a refusal to accept that their own perceptions of being wrongly touched were valid. Two gave Mr. King the benefit of the doubt despite their own serious misgivings. The third felt uncomfortable but accepted that it was legitimately required by the healing she sought and didn’t have the misgivings the other two did despite her discomfort.

[77] The likelihood of three women describing much the same events happening in the same fashion in the same location at about the same time, and simply misunderstanding what had happened or making up the same story, defies coincidence. There is no evidentiary basis for believing that to be the case. This supports what are already strong findings of credibility and turns their evidence into a virtual certainty.

Final assessment of credibility

[78] Mr. King’s evidence stood alone as what is sometimes described as a “bare denial”. This does not mean that evidence of that sort cannot be accepted, or at least serve to raise a reasonable doubt. However, I do not accept Mr. King’s evidence because of its inconsistencies and its implausibility in the face of strong credible evidence to the contrary.

[79] I found the evidence of each of the three complainants to be credible for the reasons given earlier, including the memorable nature of events, for different reasons, to each woman; the plausible reactions described, the unwavering and unshaken assertion of touching with the hands, and the improbability of coincidence of similar allegations among the three.

[80] Of course, a finding of complainant credibility is not in itself determinative of the issue of whether guilt has been proved. It is necessary to follow the guidance set out in R. v. W.(D.), (1991), 1 S.C.R. 742.

The Application of R. v. W.(D.)

[81] When there were no other witnesses in the room it is often impossible to provide corroboration, or any supporting evidence. That should not be held against the credibility of any witness. An accused person is not required to establish his innocence, provide a motive to fabricate or disprove the evidence of others. The burden is on the Crown throughout. His evidence must be examined in the same manner as that of all other witnesses and the choice is not which evidence is preferred. If I accept Mr. King’s evidence or if it raises a reasonable doubt, an acquittal must result. It is only if I reject his evidence, it does not raise a reasonable doubt in my mind and I am satisfied beyond a reasonable doubt, on the basis of the evidence I do accept, that a conviction would be proper.

[82] I find myself in that position. For the reasons given I reject the evidence of Mr. King. I do not find that his denials of touching might reasonably be true. The complete rejection of this evidence does not leave me with a reasonable doubt. I am satisfied beyond a reasonable doubt on the basis of the evidence I do accept, that the three women were touched by the hand, without their consent, or informed consent, in sexual areas of the body that Mr. King recognized as inappropriate for a medicine man to touch. This constitutes proof beyond a reasonable doubt on each charge and there are findings of guilt.

Released: Tuesday, November 14th, 2023 Signed: Justice F. Finnestad