Court File and Parties
COURT FILE NO.: CR-22-0247-00 DATE: 2024-10-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING J. McGill, for the Crown
- and -
DEREK KENNEY G. Labine, for the Accused Accused
HEARD: June 3, 4, 5, 7 and 10th, 2024, at Thunder Bay, Ontario – Reasons delivered orally, in part October 28, 2024
Madam Justice T. J. Nieckarz
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.
Reasons For Judgment
[1] Derek Kenney (the “Accused”) stands charged with four counts of sexual assault against four complainants (the “Complainants”), contrary to s. 271 of the Criminal Code.
[2] The Accused and the Complainants were the only witnesses in this matter. The Accused testified and acknowledged knowing each of the Complainants. He acknowledged the circumstances surrounding each of the events in question, he denies the allegations of sexual assault. With respect to the Complainant, K.D., he says the sexual activity was consensual. With respect to the other three Complainants, he says there was no sexual activity on the date in question.
[3] An assessment of credibility is central to determining whether the Crown has proven its case beyond a reasonable doubt.
[4] As a procedural note:
a. There were two indictments originally scheduled for this trial. One indictment has four counts of sexual assault against four adult complainants, and the other has seven counts of sex-related offences against five complainants, at least four of which were persons under the age of 16 years at the time the assaults were alleged to have occurred. The Defence had initially agreed that both indictments were to be tried together. The Crown had brought a disreputable conduct/similar act application with respect to the child complainants. At the commencement of the trial Defence counsel indicated that his instructions had changed, and he was seeking to sever various counts and have them tried separately. Submissions were made. Counsel was offered an opportunity to have a judicial pre-trial about the issues with RSJ Newton. They had the pre-trial and agreed that each indictment was to be tried separately. The indictment dealing with the child complainants has been placed on the November running list for trial. As part of this agreement the Crown abandoned any similar act application on the indictment that is the subject of this decision, but expressly stated it will be proceeding with the application with respect to the child complainants.
b. Based on the evidence adduced at trial, and on consent, the indictment is amended with respect to Count #3 to change the date from September 29, 2020, to a range of August 1, 2020, to September 30, 2020.
[5] For the reasons that follow, I find the Accused guilty on all four counts on the indictment.
THE EVIDENCE
[6] The Accused testified that even though he grew up in Thunder Bay he has had to move to another community because of the cyber and other bullying he has received on account of the allegations that have been made against him. He is currently pursuing a Master’s degree. He first learned of the allegations that form the subject of the charges against him when he was arrested.
Count #1 - K.D.
The Complainant’s Evidence:
[7] K.D. met the Accused in June 2019. They carried on some conversations through Facebook. The relationship began in or about December 2019. The relationship was not exclusive.
[8] On a night in October 2020, K.D. went to the Accused’s home. At trial she could not recall the specific date, but in her police statement she said it was October 20th, 2020. They had planned a Halloween themed “date night”. They were going to carve pumpkins and do some body painting. She assumed the night would include some sexual activity.
[9] K.D. arrived at the home and sat on the couch in the living room. She was breastfeeding and was not drinking. At some point the Accused offered her tea. He went into the kitchen to make the tea. K.D. drank the tea and started to feel “off”. She felt numb, everything started going “wavy”, and felt like hallucinations. She asked the Accused why she would be feeling this way and remembers him telling her he put mushrooms in her tea. They had talked about her having done this before, and he said he wanted to experience it with her.
[10] The next thing K.D. remembers is him painting on her bottom. She does not remember where she was in the apartment when this happened.
[11] She also remembers finding herself face down on his bed. She was in and out of consciousness. She does not remember how she got to the bed. She does not remember taking off her clothes. She recalls waking up and feeling the motion of him having anal intercourse with her. She would then “black out” again. She does not remember how long this went on for. She does not remember if he said anything or if she did.
[12] She recalls forcing herself off the bed at some point and going to the shower. She had paint all over her bottom. She did not feel that she could drive home. The Accused followed her to the shower. She cannot remember what happened in the shower or how she got back to the bed. Next thing she remembers is waking up in the morning and going home. K.D. and the Accused had no conversation about what happened that night.
[13] There were no further dates after this night.
[14] At the end of February/beginning of March 2021 she contacted police. Her brother was dating a girl who alleged she had previously been sexually assaulted by the Accused (E.T.). Her brother had called her to warn her about the Accused. E.T. was going to report her alleged assault to police and K.D. decided to do the same. K.D. had also been in contact with “Jen”, the Accused’s son’s mother, who made her aware of some “previous charges”. After she reported her allegations, she began seeing social media reports about the Accused and has had some limited contact with some other individuals who have made allegations against the Accused.
[15] K.D. knows some other individuals who have made allegations against the Accused, but who do not appear on this indictment. They have talked about, but not shared details of their respective assault allegations. K.D. has messaged people she knows with children to warn them about the Accused after having heard other allegations about him. At some point she sent an email to the Accused, but there is no evidence as to when and what was said.
The Accused’s Evidence:
[16] The Accused testified that he was in a non-monogamous relationship with K.D. for approximately 9 months and had known her for approximately 1 year prior to that.
[17] The Accused recalls the events of October 20, 2020. He confirmed that he and K.D. had made Halloween date night plans that included body painting and pumpkin carving. K.D. came over late afternoon and brought everything required for the activity to his home. They carved pumpkins together and then he painted a pumpkin on her bottom and her nickname. He took a photograph of the painting to show her what it looked like. He kept the photograph, and it was entered into evidence. The painting took place in the living room and on the couch.
[18] The Accused testified that after the painting was complete, he and K.D. had consensual sexual intercourse, made a video together for part of their sexual encounter, and then at the end of the evening she showered and drove home. It was approximately 8 or 9 p.m. when she left.
[19] The Accused recalls that they had a nice time. He described it as “…casual, caring, loving.” He acknowledges that they had anal sexual intercourse. He says he taped the intercourse with K.D.’s cellular phone, at her request, so that she could post it for sale privately. He believes it was sold that night and that it may have been deleted from K.D.’s phone. He says that the way the video was filmed, it would not identify either of them. It was approximately 4 minutes in duration, although the sexual activity lasted for approximately one hour in total. He denies that either of them was under the influence of any alcohol or drugs, and he specifically denies giving K.D. tea with mushrooms or any other substance in it. He recalls they had had prior conversations about mushrooms. He denies having showered with her. His evidence is that all the events of that night were consensual.
[20] The Accused further testified that after October 20th the relationship simply tapered off and the only time he saw K.D. was when they met to return items to each other. He says that the relationship ended approximately a month after October 20th.
Count # 2 - S.W-R. (S.W. on the indictment)
The Complainant’s Evidence:
[21] S.W. alleges that approximately 20 years ago, in 2003/2004, shortly after her high school graduation, she travelled to Thunder Bay to visit some friends she had met online.
[22] She went out with a group of people at a local bar for karaoke. She is unsure as to what time they arrived at the bar, but remembers it was still light outside. They left approximately one hour before last call.
[23] The Accused spent his time between their table and making rounds in the bar. S.W. testified that she had a few drinks over a few hours. She did not have any interaction with the Accused while at the bar. They had a group of people at their table.
[24] When it came time to leave the bar, S.W. testified that the Accused came with them in the car. At that point she was told that plans had changed, and the friend she was supposed to be staying with had changed plans and arranged for her to stay with the Accused for the night. She says she felt very uncomfortable with this arrangement as he was a stranger to her, but she capitulated as the Accused appeared to be friends of the friends she was visiting.
[25] S.W. further testified that she was dropped off at the home of the Accused. It was a downstairs apartment in a house. She recalls a long hallway and only one way in or out. She says she was “terrified” and made specific note of the exit. The Accused set up a daybed that was in the living room with a blanket and pillow. She plugged in her phone so it would remain charged, and she sent a message to a friend to let someone know where she was.
[26] S.W. testified that the Accused went to his bedroom to “get comfortable”. S.W. recalls him coming out of the bedroom in tube socks and a bathrobe, which she described at trial.
[27] After the Accused came out of his bedroom, S.W. alleges he came up to the daybed where she was sitting and put his right leg on the bed exposing his genitalia to her. He began thrusting and asking if she wanted “it”. She replied “no” and moved over on the couch/bed. She was in a relationship at the time and told the Accused this. She alleges he responded with words to the effect of ‘isn’t that why you’re here’. She said “no”. She recalls feeling “scared” and “frozen”. He asked if she wanted a drink and she declined. He then offered her tea, and she agreed. They had tea together. Specifically, they had a cinnamon tea (Celestial brand). She had milk and a large amount of honey in it. She remembers it was very sweet, and she took a few big sips very quickly. There was no conversation. The Accused was sipping his tea a few feet away from her. She was sitting and he was standing up and watching her. She recalls a “really weird taste” and her mouth felt “tingly”. She remembers leaning back against the wall because she felt “woozy”. She went to reach for her phone and message her friend, but she does not know what happened after that. She recalls it felt like she was “high”. She felt very tired.
[28] The next thing she remembers is waking up in the morning. Her bra was above her breasts and her shirt was shoved up above her neck. Her pants were not on. Her underwear was disheveled, exposing her labia. The lace parts of her underwear were torn. She felt out of sorts and groggy. She felt a throbbing pain in her vagina. The Accused was in his room with the door shut. She gathered her phone charger, phone, her clothes, purse, and luggage and went to the bathroom. She noticed blood in her underwear. There was some blood in the bed as well. She did not have her period and she did not think it looked like menstrual blood. Also on the sheets was a white substance that she described as being like the “white of an egg when you crack it”. Her breasts felt sore, and her legs felt like she had “been on a horse too long”. Her labia felt tender and overall, her vagina felt uncomfortable. She came to the conclusion that she had been “raped”.
[29] While she was making her observations of the daybed the Accused came out of his room. She did not want to alert him to what she suspected and told him she was looking for a lost ring in the bed. He asked her if she wanted breakfast and she declined. She left at approximately 8:30 a.m. when a friend walked over to meet her. Because the Accused was friends with S.W.’s friends she was originally staying with, she had to see him a few days later. Otherwise, she has had no contact with him since.
[30] S.W. testified that she did not seek medical assistance. She just wanted to take a shower and forget about what had happened. She ultimately contacted police on April 18, 2021, when she saw a Facebook post that encouraged victims of the Accused to come forward. Based on the comments in the post she realized she was not alone, and she could no longer try to pretend it had not happened. She had not told anyone about the assault before. She does not know any other complainants other than someone called N.M. who she knows through the “arts scene” but has never discussed the allegations with her.
The Accused’s Evidence:
[31] The Accused acknowledges having met S.W. one night in 2003 at a local karaoke bar. He remembers being at the bar when S.W. and her friends arrived. They had mutual friends. He was going around the bar talking to people he knew.
[32] He recalls that at some point in the evening he was asked by someone if he would provide S.W. with a place to stay. He agreed. A group of people piled into a car, with the Accused and S.W. being dropped off at his apartment.
[33] Once at his place they went inside. The Accused said he was sober, and S.W. appeared to be sober also. He showed her the pullout couch/futon where she was to sleep. He showed her the bathroom and kitchen and told her to make herself comfortable. He changed into a robe, boxer shorts, and a t-shirt. He denies having exposed himself to S.W. He acknowledges having made a cup of tea and offering one to S.W. S.W. declined the offer. He enjoyed his tea, wished her ‘good night’ and they each went to sleep. She slept in the living room, and he slept in his bedroom with the door closed. He denies having drugged her or having intercourse with her. He denies her having lost consciousness at any time.
[34] The Accused recalls it was a weekend night. He also recalls waking up somewhere between 8:30 – 9 a.m. When he got up, S.W. was already up, clothed, and moving around gathering up her belongings. He remembers they had polite interaction that morning before she left. She did not complain to him about anything. He did not offer her breakfast.
[35] A couple of days later the Accused saw S.W. again at a group outing. She said nothing about anything untoward and spoke politely and casually with him. This was the last time he saw her.
Count # 3: A.M.
The Complainant’s Evidence:
[36] A.M. testified that she met the Accused online on Facebook in or about 2020. After speaking online for 6 or 7 months, they developed a casual romantic relationship.
[37] A.M. testified that sometime around the end of August/beginning of September 2020, the Accused messaged her and told her his back was sore. She offered to give him a massage at her home. He came to her home between 12:30 – 1:00 a.m., and she began giving him a massage on the couch in the living room. Her children were home and downstairs in the basement in her bedroom. She believes they were ages 10, 6, and 4 at the time. The Accused had been to her home between 8 to 10 times previous.
[38] In cross-examination, when confronted with her police statement, A.M. acknowledged that her recollection of the date and time may have been inaccurate. She told police that the incident occurred September 29th at approximately 10:00 p.m.
[39] As A.M. was massaging the Accused, she says he began asking her odd things about trauma she suffered as a child at the hands of her step-father. She became very uncomfortable with the conversation, particularly given the context of her giving him a back massage. In her words, she was “triggered” and started to feel “scared”. She wanted the Accused to leave.
[40] A.M. testified that the Accused began saying things such as the step-father who assaulted her must have really loved her to have wanted to touch her that way as a child. He then asked her to call him “daddy” and pretend he was her step-father because he also loved her in that way. She testified that she was frozen, did not know how to respond, and felt like a “deer in the headlights”. The Accused had stripped down naked and was laying on the couch on his stomach. This too had surprised her.
[41] A.M. further testified that at some point, the Accused turned over and pinned her into the corner of the couch. They were both seated. He became erect during the conversation about her being assaulted as a child. He then started kissing her. She was frozen and did not do anything. She just kept saying that “my kids are downstairs” and “not right now”. She recalls the Accused responded with a question to the effect of “you have two daughters, right?”. Given the bizarre conversation initiated by the Accused, she became worried that he may go and do something to her daughters. For this reason she did not resist further and let him “do what he wanted”.
[42] She testified that the Accused forced himself on her and had intercourse with her. She was still sitting on the couch and had her legs up in the air, with him in between them. She said it felt like it went on for a long time, but it was probably less than 10 minutes. He kept repeating statements such as “this feels really good” and “your step-dad must have really loved you”. He said that he was a healer and if she pretended he was her step-dad she would heal from her trauma. This was not the first time he had said such a thing. He had told her before he was a healer and a shepherd, trying to help women overcome their traumas.
[43] He also said that her acne made her look like a teenager or young girl. He told her to be quiet so ‘we don’t get caught’. A.M. testified that he wanted her to call him ‘daddy’. He was role playing that he was her step-father and was saying things to the effect of ‘you don’t want your mom to catch us’, ‘you don’t want her to catch me downstairs’.
[44] Throughout the intercourse she remained frozen and staring at the door to the outside of the house. The Accused ejaculated inside of her, and she played along and pretended she had orgasmed also. He then put his clothes on and left. She remembers spending hours frozen on her couch crying. This was the last time she saw the Accused.
[45] A.M. decided to come forward when she saw a news release on Facebook about other charges the Accused was facing. She went to the police station on April 10th, 2021, approximately 6 months after the incident. She does not know other complainants (although knows of one) and has not discussed her allegations with them. She did not discuss what had happened with anyone before she went to the police. She did not report it sooner as she was afraid of not being believed. She felt that people often do not believe women when they allege a sexual assault, and that she felt the Accused to be well known with a good reputation.
The Accused’s Evidence:
[46] The Accused acknowledges having met A.M. through Facebook. He described their relationship as a “casual partnership”. They had known each other for a month or two before August 1st, 2020.
[47] He recalls that when they got together, they would always go to her home and not his because she had children, and it was difficult for her to get childcare.
[48] He denies the alleged incident took place. He denies A.M. having confided in him her prior history of abuse. He denies her giving him a massage on this date. He denies engaging in any sexual activity. He remembers the event because the relationship was over. He ended the relationship because he was seeing K.D. at the time. It was a polite and cordial ending to the relationship. The first he heard of her allegations was when he was arrested.
Count #4: E.T.
The Complainant’s Evidence:
[49] E.T. testified at trial. She says that she was approximately 16 years old when she met the Accused. His band was playing at her high school. He saw her singing and approached her to tell her she had a good voice. After that, they kept in touch by text and met a month or two later. They developed a casual relationship, and she stayed overnight at his place a couple of times.
[50] In November 2017, approximately a year and a half after they had met, E.T. called or texted the Accused and asked if she could come over. She had argued with her grandparents, had been told to leave the house, and needed a place to stay. The Accused agreed, and she walked to his apartment on Edward Street. She cannot recall the exact time but believes it was 9 or 10 p.m. She does not recall the exact date, but knows it was a couple of day before she went to the hospital, so she estimates November 3, 2017.
[51] When she arrived at the Accused’s apartment, he was playing video games. She sat on the couch, and they began drinking and talking. He offered her Jack Daniels and she had 6 or 7 shots over time. The Accused was drinking too. She felt a “buzz” but was not “falling over myself or anything”.
[52] E.T. says that at a certain point she was laying on the couch on her back when the Accused told her to take off her pants with a stern voice. He said it twice. She said “no”. Despite being told “no”, the Accused grabbed her by the waist and took her pants off. He then touched her vagina with his hand. After that, he forcefully put his penis in her mouth. At this point she believes she was sitting up and he was over top of her. She remembers him asking her if she liked what he was doing but does not recall if she responded. This went on for 5 minutes. At some point he grabbed her by the hair and slapped her face.
[53] When she was laying down again, the Accused penetrated her with his penis. He was on top of her. He had intercourse with her until he ejaculated on her stomach and breasts. She did not initially remember anything he said during intercourse until prompted by the Crown. She recalled he asked if ‘daddy’s girl liked what [he] was doing’, and that he called her a ‘good girl’.
[54] After this they went to bed together in the bedroom. The next morning, she got up and left. She did not have breakfast. After this, she did not have any other interaction with him except for a chance encounter when she worked at the airport.
[55] Two days after the incident she went to the hospital. She was in a lot of pain and had difficulty urinating. She had a pelvic examination performed at the hospital and was told there were tears in her vagina. No medical reports were filed. There is no evidence she told the medical personnel at the hospital anything about her encounter with the Accused.
[56] E.T. did not immediately report the incident to police. She did not report the incident until March 2021, approximately 3 ½ years after the assault is alleged to have occurred. She finally decided to report the incident when she heard there were other people the Accused had assaulted. She believes she learned about this from social media but is uncertain. She said that it was at that point that she was ready to report.
[57] In cross-examination, E.T. acknowledged that at no time did the Accused force her to stay at the apartment or prevent her from leaving. When he put his penis into her mouth, she did not close her mouth or bite down to stop him. She further acknowledged that she knows complainant K.D., as she dated her brother, and while they have discussed what happened to them, they have not done so in detail. She acknowledged that K.D.’s brother had texted her approximately one week before she went to the police, and there was some communication about what had happened. She decided to report because it gave her some solace knowing she was not alone.
The Accused’s Evidence:
[58] The Accused acknowledges having had a casual relationship with E.T. in which she periodically stayed overnight. He testified that he remembers the night in question. E.T. was told to leave her grandparents’ place and came over to his. Arguing with her grandparents like this was a common occurrence. He did not give or offer her any refreshments. He recalls they went to bed but did not have any sexual activity. They went to sleep. She got up the next day and left sometime between 9 and 10 a.m. He does not recall if it was a weeknight or weekend. Shortly thereafter they broke up. In cross-examination he acknowledged that he did not see E.T. again after this night.
[59] The Accused says that his relationship with E.T. ended when she started to date a bandmate of his, Graham McMaster.
ANALYSIS:
Legal Framework:
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[60] The Accused is presumed innocent unless and until the Crown proves beyond a reasonable doubt that he is guilty. This standard of proof is very stringent.
[61] Even if one believes an accused is probably or likely guilty this is insufficient to establish guilt beyond a reasonable doubt and the accused must be acquitted. I cannot convict the Accused unless, based on the evidence before me, I am sure that he committed the offence: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39.
[62] There is no onus on the Accused to disprove the allegations. The burden requires that the Crown convince me, beyond a reasonable doubt, that the Accused committed one, or more of the offences alleged.
Reasonable Doubt and Sexual Assault Cases:
[63] This case is what is often referred to as a “he said, she said”. There is no documentary or other evidence that sheds further light on the allegations or the defence to the allegations. Cases like this, based on the conflicting testimony of two witnesses and no other evidence, are often the most difficult to decide.
[64] Even though there are four complainants, I must exercise caution on each count to consider only the evidence of the Accused and that particular complainant, and not allow myself to be influenced by the evidence of the other complainants, or the fact that there are three other complainants. I have also disabused myself of the Accused’s evidence that he has a prior conviction for sexual assault, and that he is facing further charges related to different complainants. There was also reference in the testimony of the Accused and some of the complainants as to sexual activity between them other than the events in question. There was also evidence of K.D. having participated in filmed sexual activity with the Accused and others for OnlyFans. There were no applications made for the introduction of that evidence, and I have disabused myself of this evidence also. The only evidence of sexual activity I have considered is related to the events at issue.
[65] It is important to note in cases such as this that the law is clear: it is not appropriate for me to determine a verdict by saying “who do I believe”. A determination of guilt is not to be based on a mere credibility contest between a complainant and an accused. Such an approach erodes the presumption of innocence and the standard of persuasion of proof beyond a reasonable doubt: R. v. Ford, 2020 ONSC 6008, at para. 162, and R. v. A.K., 2019 ONSC 5160 at paras. 55.
[66] To assist in the application of the burden of proof in cases such as this, when there are competing versions of what happened, the Supreme Court of Canada provided the analysis to be followed in R. v. W.(D.), [1991] 1 S.C.R. 742. The analysis described at paragraph 28 of W.(D.) states:
- First, if you believe the evidence of the accused, obviously you must acquit.
- Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
- Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[67] In considering the evidence I may believe all, some, or none of each witness’ evidence.
[68] In applying the W.D. framework, I must first consider the evidence of the Accused in the context of all the evidence in the case, including the evidence of the relevant complainant (but as indicated above, not the other complainants). If, after considering all the evidence I am left in a state of uncertainty, then the presumption of innocence and burden of proof on the Crown requires me to acquit: R. v. S. (J.H.), [2008] 2 S.C.R. 152, at para. 11.
[69] As Code J., explained the W.(D.) principles in R. v. Thomas, 2012 ONSC 6653 (Ont. S.C.J.), at paras. 23-24:
[23] [W.(D.)] does not describe three sequential analytical steps that a trier-of-fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”).
[24] A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.(D.) are simply different results, or alternative findings of fact, arrived at by the trier-of-fact at the end of the case when considering the totality of the evidence.
[70] Importantly, Paciocco J. (as he then was) in an article entitled “Doubt about Doubt: Coping with W. (D.) and Credibility Assessment”, (2017) 22 Can. Crim. L. Rev. 31, at pp. 45-46, explained with respect to the third W. (D.) rule that it “is meant to confirm that even after the total rejection of defence evidence, guilt is to be determined on the affirmative evidence that is credited, not on the simple fact that the defence evidence has been rejected.” As Paciocco J., further notes, this step is crucial to fair fact-finding in criminal cases:
As a matter of law, if individuals could be convicted simply because the exculpatory versions they have offered are rejected, this would reverse the burden of proof; they would be convicted because they have not proved their innocence.
In other words, rejecting the evidence of the Accused is not sufficient for a finding of guilt, I have to find that the Crown has proven the case beyond a reasonable doubt based on the evidence in the trial that I do accept.
Defence Position:
[71] The Defence invites me to discount the credibility of all four complainants. The Defence argues there is some evidence of collusion between the Complainants, with some being more significant than others. The Defence also argues that the Complainants’ recollection of historic events with respect to the Accused has been clouded by the social media “lynch mob” that has decided that the Accused is a sexual predator. The Defence argues that at a minimum, each complainant has acknowledged having seen the social media posts with a charge as it was described, and the Accused’s name attached to it. The Defence argues that I should be suspicious of their evidence because their experiences and recollection of those experiences with the Accused have been tainted by what they read.
[72] On the other hand, the Defence argues that the Accused’s evidence was unshaken in cross-examination and should be believed. The Defence argues that there is no evidence to suggest he should not be believed, and as such, the Crown has failed to prove its case beyond a reasonable doubt.
Crown Position:
[73] The Crown argues that the evidence of the Accused should be rejected and that of the Complainants should be accepted. There is no evidence of collusion between the Complainants as alleged by the Defence. This is mere speculation. While each of the women saw social media posts about the Accused alerting them that there were matters involving the Accused, the Crown argues that these posts simply empowered them to come forward and make their complaints. None of them exaggerated their evidence. Each of them gave detailed accounts of what happened to them to the extent possible considering that two of the Complainants allege they were drugged. Each candidly admitted when they could not remember or may have been mistaken about a fact such as a date. Their evidence was unshaken in cross-examination, whereas for the most part the evidence of the Accused amounted to nothing more than a bare denial.
Findings, taking into consideration the evidence, law and argument:
[74] Firstly, I do not accept the submission of the Defence as to collusion, or that the recollections of the Complainants have been influenced by social media posts and/or the lynch mob mentality that may have surrounded them.
[75] Only two of the Complainants, E.T. and K.D. have had any real contact with each other. E.T. dated K.D.’s brother. It is their evidence that they did not discuss their allegations in detail. A.M. contacted K.D. at some point, but their communication was brief. Regardless, while some of the Complainants share some similarities in their allegations, for the most part the allegations are quite different. K.D. and S.W. each testified that they were drugged when drinking tea offered by the Accused. E.T. and A.M. each testified that the Accused said to call him “daddy” during intercourse. Where there are similarities, there is no evidence of communication between the Complainants or that what they have each read has influenced their account of events.
[76] None of the social media posts that are alleged to have influenced the Complainants’ versions of events were put into evidence. Based on the evidence of the Complainants, these posts had to do with one or more other alleged sexual assaults, but I do not know what they say or who posted them. S.W. testified that she saw something that told viewers to contact police if they had been assaulted by the Accused. She said the post had comments that made her realize she ‘wasn’t alone’. A.M. testified she saw something related to a child. K.D. testified she reported to police before seeing the social media posts.
[77] For each of the Complainants, there was no evidence from the Accused to suggest any reason for animus on their parts when the relationships ended, or any reason why they would alter their view of what really happened to create a narrative of an assault. With respect to S.W., the Accused described a polite and friendly encounter some 20 years prior to trial, with no contact since. With respect to A.M., the Accused testified that he ended the relationship, but it was a casual relationship of short duration, and the conversation ending the relationship was polite and cordial, cold but necessary. With respect to K.D., the Accused suggested that the relationship just tapered off. With respect to E.T. the evidence of the Accused was that the relationship ended by E.T.’s choice when she began a relationship with McMaster. While the Accused is under no obligation to provide evidence of animus or evidence of any motive on the part of the Complainants to fabricate (to require him to do so would improperly reverse the onus), I point out this lack of evidence merely as part of the reason why I reject the Defence submission that the Complainants either fabricated or had their recollection of otherwise innocuous events influenced by social media posts. I do not have sufficient evidence on which to draw this conclusion, and the evidence I do have suggests otherwise. Using S.W. as an example, she had had no contact whatsoever with the Accused in the 18 years prior to her report. It is not reasonable to assume that after an allegedly polite and friendly encounter in which the Accused gave her a place to stay when she had none, and nothing else happened, that she could be influenced by other allegations to create the narrative of a sexual assault.
[78] With respect to A.M., S.W., and E.T., to accept the Defence submission would require me to conclude not only that the Complainants’ perception of an otherwise consensual situation was influenced by what they saw on social media, but rather that in response to those posts these complainants completely fabricated a sexual encounter with him. There is no evidentiary basis for that conclusion.
[79] Secondly, when I consider the evidence of the Accused in the context of the evidence as a whole with respect to each complainant (not applying the evidence of one count to make findings on another), I do not believe him. I find the evidence of each complainant so compelling that it not only causes me to reject the evidence of the Accused, but it also rises to the standard of proof beyond a reasonable doubt.
[80] In arriving at this conclusion, I have not firstly made findings that I believe each complainant and then looked to the evidence of the Accused to give me a reason to disbelieve. To do this would improperly reverse the onus. I have considered first the evidence of the Accused in the context of the evidence as a whole.
[81] I will now specifically address each count.
Count #1 K.D.
[82] K.D.’s situation is the most challenging. She acknowledges that she had intended to go to the Accused’s home and engage in body painting and a sexual activity. However, as set out in greater detail above, the Crown alleges her consent was vitiated when she was drugged, the Accused painted her bottom and then had anal intercourse with her. The Accused admits that there was anal intercourse, but denies having drugged K.D., and says that all activities that night were consensual.
[83] Neither the Accused nor K.D. were shaken in cross-examination as to the core aspects of the allegations.
[84] In accordance with the legal principles I have explained above, I must start my analysis with the evidence of the Accused, considered in the context of the evidence as a whole including that of the Complainant.
[85] I do not believe all the evidence of the Accused, and in particular that the events of the night at issue were consensual. What happened after this night, and the circumstances surrounding the ending of the relationship causes me to doubt his account. The account of the Complainant is more consistent with the abrupt ending to this relationship.
[86] This was a relationship of 8 to 9 months. While K.D. testified she had tried to break off the relationship a handful of times, both the Complainant and the Accused testified that they had a date night planned together. K.D. testified she had planned “a nice date night with her partner”. The Accused says that the night was “…casual, caring, loving.” He says they had a really nice time together. Despite this, they each testified that they did not see each other again after this night, other than one occasion when the Accused showed up to help the Complainant and her then partner with a move, and then on another occasion at K.D.’s mother’s home to exchange their respective belongings and Christmas gifts they had purchased for each other’s children prior to the night in question. The purchasing, at least by K.D. of gifts for the Accused’s son suggests she intended for the relationship to continue. The relationship ending abruptly after this night is more consistent with something having happened that was upsetting to K.D., than it is with a loving and caring night. There is no evidence of any conversations between K.D. and the Accused after this night to suggest otherwise.
[87] With respect to the evidence of the Complainant, I found her to be credible and as reliable with her recollection of events that she could be considering that she was drugged and was in and out of consciousness for much of the night. She acknowledged what she could not remember and made reasonable admissions when called for.
[88] K.D. was not only credible, but her evidence left me with no doubt as to the veracity of her allegations. She was candid in acknowledging that she planned and prepared for the night. She described how she suddenly felt after consuming tea the Accused offered her. She described feeling the motion of the Accused have anal intercourse, but not being sufficiently conscious to move. She testified that while she knew she had been painted on and managed to get to the shower to wash it off, she did not know what had been painted on her other than a pumpkin until she saw the photo the Accused produced in this proceeding. This is contrary to the Accused’s evidence that he took the photo that night to show her. Her evidence, and the level of detail she provided (or did not provide as to certain parts of the night) was entirely consistent with what she said happened.
[89] The Defence argues that K.D. has fabricated the allegation of being drugged to legitimize her participation that night in recording her sexual encounter with the Accused for the purpose of selling it, and to legitimize her relationship with him overall. I do not accept this. There is no evidence of a video and K.D. was not asked if she sold a video from that night. There is no evidence of any circumstances that would have led her to feel the need to legitimize what happened that night. The evidence is inconsistent with her relationship with the Accused being concealed. K.D. had already reported her allegations to police prior to seeing the social media posts and what the Defence describes as the “lynch mob” mentality associated with them. Furthermore, K.D. and the Accused each acknowledge that they had a relationship for some months, that did not merely consist of this one night. She has not alleged any other assaults. K.D. was honest with respect to her consensual participation in the relationship with the Accused, despite being in another relationship. There is nothing in her evidence to suggest a need to turn a consensual encounter into a non-consensual one to legitimize her participation.
[90] I also reject the Defence submission that because K.D. showered and then drove home either that night, or the next morning, her account is inconsistent with having consumed drugs. If I were to accept the Accused’s evidence that she drove home that night, I would agree. K.D.’s evidence is that she could not drive home that night. She testified that she managed to shower but the next thing she remembers is waking up in the morning in the Accused’s bed. Driving home the next morning and not being able to drive home that night is entirely consistent with being under the influence of a substance.
Count #2 S.W.
[91] I do not believe the Accused when he says that the only thing that happened with S.W. is that he allowed her to stay for the night, she slept on the couch and he in the bedroom, then she left the next morning.
[92] Firstly, I have difficulty accepting that the Accused would remember, with the level of detail he testified to, the events of this otherwise unremarkable event that happened, now more than 20 years ago. I accept that he would remember his encounter with this young woman who stayed overnight with him, and that he may remember some details of the encounter, but some of the detail he offered suggests to me that he is either fabricating his version of the events based on what S.W. says happened, or that something did happen, and this is why he remembers it so vividly 20 years later. Specifically, I point to the following:
a. the Accused testified that he recalls going to the bedroom and changing into his pyjamas which consisted of his robe, boxer shorts, and a t-shirt;
b. he remembers that he did not offer S.W. a drink, but that he did offer her tea, and that he enjoyed a cup of tea;
c. he remembers that he woke up between 8:30 – 9 a.m.; and
d. he remembers that he did not offer S.W. breakfast.
It is surprising that he would remember such details in the circumstances, without evidence that explains why such minor details would be remembered 20 years later. For example, the Accused did not testify that he remembers what he was wearing because that is generally what wore to bed at that time. With respect to the time, there was nothing about his evidence that explained why he would remember waking up 8:30 – 9 a.m. on this particular date. I also find it difficult to believe that if this was an otherwise unremarkable event, he would recall what he had to drink or that he did not offer for breakfast.
[93] On the other hand, the detail with which S.W. was able to recall the events of the night at issue is explained by the trauma she says she experienced. This was not an unremarkable night for her. She had a very vivid recollection of everything down to the flavour of the tea the Accused gave her, and the tingling in her mouth as she drank it.
[94] As the Defence points out, what she does not recall is the assault itself. The Defence argues that there is no evidence of an assault, or if there was an assault that it was committed by the Accused.
[95] I disagree with the Defence argument. The fact that S.W. has no recollection of the assault and cannot say what happened during the act itself is explained by her evidence, which I accept, that she had been drugged and was unconscious.
[96] In R. v. Villaroman, [2016] 1 S.C.R. 1000, at paras. 55 and 56, the Supreme Court indicated that where the evidence is circumstantial, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that guilt is the only reasonable conclusion available on the totality of the evidence. Circumstantial evidence does not have to entirely exclude other conceivable inferences, but I must determine whether any alternative way of looking at the case is reasonable enough to raise a doubt.
[97] Based on the evidence of S.W. that she felt a tingling sensation while drinking her tea followed by falling unconscious, and that she was not impaired by alcohol, the only reasonable conclusion available on the totality of the evidence is that she had been drugged by the Accused. I further find that based on the state in which S.W. awoke to find her clothing, with her pants removed, her bra pushed up, the tear in her underwear, the blood and other substance on the bed, sore breasts, legs feeling like she had ‘been on a horse too long’, her labia were tender, and she had pain in her vagina, the only reasonable conclusion is that she had suffered a sexual assault of some form. Given that an ejaculate-like substance was seen on the sheets and not in her underwear, I cannot say the only reasonable conclusion is that the assault was in the form of sexual intercourse, although I am certain there was a sexual assault of some nature. Given that S.W. and the Accused were the only two people in the apartment and there is no evidence of anyone else entering or leaving the apartment, the only reasonable conclusion is that the assault was committed by the Accused.
[98] In reaching this conclusion I have considered that there are some details that the complainant may have been mistaken about or exaggerated during the course of her evidence. For example, it is quite possible that the Accused is correct, and he met the complainant and her friends at the bar, and he did not ride with them to the bar. Secondly, I agree with the Defence that the Complainant’s description of the Accused going around the bar trying to pick up women may not be accurate and that her assessment of what may have been innocent socializing with people the Accused knew has been influenced by her view of him as a sexual predator. Thirdly, I was left with the impression that S.W.’s description of her fear and attempts to be vigilant about her personal safety once in the apartment of the Accused may have also been somewhat exaggerated to justify her decision to stay overnight at the home of a stranger. Having said this, the evidence of S.W. on these points does not change my overall assessment of her evidence as credible and reliable to the point that I have no doubt at all that she was sexually assaulted by the Accused at his apartment on the night in question.
[99] My assessment of S.W.’s evidence is not changed by her seeing the Accused days later, in a social setting with other people, and was polite and friendly and she said nothing to him or anyone else. If I discounted S.W., or any of the other Complainant’s credibility because they did not disclose the alleged abuse or did not behave a certain way towards the Accused in subsequent encounters, I would be relying on impermissible generalized and stereotypical assumptions of how a victim of sexual abuse ought to behave in the circumstances. Whether the reason for not reporting the incident is fear of not being believed, embarrassment, or some other reason, on the facts of each charge in this case, it is irrelevant.
Count #3: A.M.
[100] The Accused denies that the event complained of ever occurred. He argues that there is no corroboration of the evidence of A.M., and that his testimony was unshaken in cross-examination. For these reasons, he argues that there is no evidentiary basis for me to not believe his denial and I cannot simply disbelieve him. He says that his denial creates reasonable doubt.
[101] Corroboration of the allegations is helpful, but not required for proof beyond a reasonable doubt. As is often the case, the only two people present during the event when the assault is alleged to have happened are the Complainant and the Accused.
[102] With respect to the evidence of the Accused, at best I was a bit confused by it, and at worst it was contradictory.
[103] In his examination-in-chief, the Accused testified as follows:
Q. Now she describes an incident that takes place at her place near the end of August 2020, while her kids were home. You heard her, correct?
A. I did.
Q. Did that incident take place?
A. No.
Q. Did you, on this particular occasion when you went over there, have any kind of sexual encounter with her that day?
A. No, sir.
Q. And how is it that you can remember that particular event?
A. The relationship was over.
Q. So how did the relationship end with A..?
A. We had a conver – I – I ended it. We had a conversation. It was polite and cordial, cold but necessary…we had a conversation, and I ended the relationship.
Q. So you’re telling the court that what A… described to this court did not happen?
A. Yes, sir.
[104] Based on the question from counsel, which specifically refers to the Accused going to A.M.’s home “that day”, the Accused seemingly acknowledges that he was with A.M. on the occasion in question but that the “incident” she alleged did not happen. He denies having intercourse because the relationship was over. Earlier in the examination he denied having a massage on “this particular day”, which I presume is the day A.M. says the Accused went to her home and had non-consensual intercourse with her.
[105] In cross-examination:
Q. And on this occasion, you indicated in your evidence that you didn’t get a massage?
A. No.
Q. Okay and you’ve heard her say that that was the purpose of your going over to her place.
A. I did hear her evidence, yes, ma’am.
Q. M’hmm, so I’m going to suggest to you sir that the purpose of going over to her place was to have sexual intercourse with her?
A. No, ma’am.
Q. Then what was the purpose of going over?
A. I did not attend at her house on the date in question or for any of the activities described.
Q. I’m a bit confused, I believe I might have misheard some of your evidence then, because it seemed to me that you indicated that you did go over to her place, but that you didn’t get a massage.
A. I did not attend her house at any time as described in her charges or Indictment. I had been to her place several times…yes.
Q. Okay, so it’s your evidence now that you didn’t go over at all on the evening that she described.
A. The evening that she described did not happen.
[106] No one asked the Accused when the relationship ended. According to A.M., she did not see him again after this assault. I do not accept the Accused’s evidence that it was he who ended the relationship with A.M. because he wanted to focus on the relationship with K.D. The relationship with K.D. was not an exclusive one, and by the Accused’s own evidence he was already in the midst of the relationship with K.D. when he began the relationship with A.M.
[107] With respect to the evidence of A.M., I found her evidence both credible and reliable. Her detailed description was compelling with respect to what the Accused said to her, how the intercourse occurred, her evidence of her reaction, her evidence about staring at the door and her fear for her children, and her reaction of freezing when the Accused raised her prior history of trauma during intercourse.
[108] Even if I take the evidence of the Accused at its best, which is that he did not go to A.M.’s home and he knows this because the relationship was over by then, I must assess this denial in the context of the evidence of the Complainant and the evidence as a whole.
[109] The Defence argues that there is no reason to disbelieve the unshaken denial of the Accused. The evidentiary basis for disbelieving the evidence of the Accused is the detailed and compelling evidence of A.M., which I accept to the extent that it leaves no room for reasonable doubt. I accept that during the course of this event A.M. told the Accused “not now” in response to his sexual advances but he persisted. In doing so he committed a sexual assault against her. She cooperated out of fear.
[110] In assessing the reliability of A.M.’s evidence I have considered A.M.’s confusion and inability to recall the exact date and time of the alleged event. She testified three and a half years after the event and approximately three years after she gave her statement to the police. She gave the police a date when she made her report 6 months post event. She did so after reviewing her text messages with the Accused. It is understandable that 3 ½ years later she cannot recall the specific date and time. Even though there was inconsistency in her evidence as to the exact time, she did recall the it was end of summer and late at night.
Count #4: E.T.:
[111] I do not accept the evidence of the Accused for the following reasons:
a. The Defence argues that E.T. did not bring the allegations forward to police until almost 4 years after the event. The Defence argues that in assessing her evidence and her ability to recall an event that took place 3 – 3 1/2 years ago (6 ½ years ago as of trial) I must keep in mind that most people do not remember what happened to them 3 – 3 ½ years ago, and therefore her version must be based on something she has read about the Accused as opposed to what happened. As I have already outlined in my general findings, there is no evidence to support a conclusion that her evidence has been fabricated based on what she has read or heard. As with the other complainants, I accept that she recalls this incident and the details she has testified to because it was a traumatic, and unusual event.
Conversely, applying the Defence logic to the evidence of the Accused, and in the context of a situation in which E.T. had previously stayed over on 5 or so occasions, it is less believable that he would remember details of a night that was 3 1/2 years previous (as of her reporting date) and 6 ½ years before trial. These details include whether anything was offered to E.T. to drink, what time they got up the next morning and whether they had anything to eat or not. I do accept that the Accused recalls E.T. staying over that night because she had nowhere to stay but given the otherwise remarkable nature of the Accused’s version of events, it is suspicious that he would remember the level of detail he did if nothing at all happened, or alternatively he is using the account of E.T. and fabricating details that support his narrative and do not shed any negative light on him (such as not giving an underage individual alcohol).
b. The evidence of both parties is that they had known each other for some time before this event. E.T.’s evidence that she did not see the Accused again after this event. There is no evidence that as of this night she had started a relationship with the Accused’s bandmate, and indeed it was the Accused she turned to in her time of need. There is no evidence of any further contact after this event. The abrupt end to the relationship is consistent with E.T.’s version of events.
[112] I further reject the Accused’s evidence on the basis that I not only find E.T.’s version of events credible and reliable, I find that it rises to the standard of proof beyond a reasonable doubt.
[113] In making this finding I have given no weight to E.T.’s evidence that she went to the hospital two days later and was told she had vaginal tears. There are no hospital records filed. What she says she was told is hearsay. If vaginal tears were found, there is no evidence as to the physician’s conclusion (if any) as to what the cause was.
[114] In considering the reliability of E.T.’s evidence, I acknowledge the Defence submission that there were many details that E.T. could not remember. Details such as the floor of the apartment building the Accused lived on, if anything else was said at various points during and after the alleged assault, how she came to lay down and sit up at various points, whether her drinks were in shot glasses or regular glasses, what exactly she was wearing (other than pants), how long he touched her vagina for, or the exact date.
[115] E.T. acknowledged that while she recalls the incident, she does have difficulty recalling exact details given that it happened some time ago. I am not concerned about the details she cannot recall. Given what happened to her and the passage of time, it is unsurprising. What she does recall clearly, and I find as a fact is that she was given shots of alcohol, her pants were forcefully removed by the Accused after E.T. had said she did not want to take her pants off, the Accused slapped E.T. and pulled her hair, and he had oral and vaginal sex with her. Given that she told him she did not want her pants taken off, there was no consent for the sexual intercourse.
[116] Lastly, in cross-examination, and in response to questions from the Defence, E.T. admitted that she did not try to bite the Accused when he forcefully put his penis in her mouth. She did not refuse to open her mouth. She did not try to run away during the event or after, she was never prevented from leaving by the Accused, and she stayed the night and slept in the same bed as the Accused. None of this, in circumstances in which this then 18-year-old young woman said she did not want her clothing removed, is indicative of her consent. She did not need to do any of these things. Saying “no” was sufficient. Again, to find otherwise would be to rely upon impermissible assumptions as to how someone should react both during and after a sexual assault. Regardless of all of this, the Accused has not alleged consent but that the act did not happen.
DISPOSITION:
[117] For the foregoing reasons, the Accused is found guilty of all four counts of sexual assault contrary to s. 271 of the Criminal Code.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: October 30, 2024