Information and Parties

Information No.: 13-R1943

Ontario Court of Justice

Her Majesty the Queen

v.

Jeffrey Wills

Reasons for Decision

Before the Honourable Justice J. D. Nadelle

Monday, March 16, 2015 at Ottawa, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 AND 517 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE J. D. NADELLE, ONTARIO COURT OF JUSTICE, DATED MARCH 16, 2015

Appearances

M. Cunningham – Counsel for the Crown

K. Reid – Counsel for Jeffrey Wills

Decision

NADELLE, J. (Orally):

Charges

[1] The accused Jeffrey Wills stands charged with eight offences involving two complainants, D. B. and A. M. With respect to A. M. he stands charged with inviting a person under 16 to touch his penis for a sexual purpose, and with exposing his genital organs to a person under 16 for a sexual purpose, contrary to Section 152 and Section 153(2) respectively of the Criminal Code. With respect to D. B. Mr. Wills stands charged that he sexually assaulted her between April 2nd, 2013 and May 15th, 2013, and sexually assaulted her on May 15th contrary to Section 271 of the Criminal Code. He is also charged that between April 2nd, 2013 and May 15th, 2013, he touched with his penis for a sexual purpose a person under 16, and between the same dates he invited a person under 16 to directly touch with her hands and mouth the body of Jeffrey Wills, contrary to Sections 151 and 152 of the Criminal Code. Lastly, he stands charged with offences contrary to Section 151 and 152 of the Criminal Code alleged to have occurred May 15th, 2013.

[2] The Crown has elected to proceed by way of indictment and the accused elected trial before this Court.

Kahn Application and Hearsay Evidence

[3] The Crown has brought what is known as a Kahn application, R. v. Kahn, [1990] 2 S.C.R. 531. In simple terms, the application is to have D. and A.'s out-of-court statements to their parents and to the police admitted as evidence for the truth of their contents without having to call them as witnesses or to have them available for cross-examination. The body of law dealing with out-of-court statements, always called hearsay, by complainants has been developed over time and such statements can be ruled admissible if certain criteria are met. Those out-of-court statements are often subjects of Kahn applications where the complainants are very young. This new body of law, or approach to hearsay evidence, is referred to as the principled approach to hearsay.

[4] At paragraph 47 of R. v. Khelawon 2006 SCC 57, [2006] 2 S.C.R. 787, Charron, J. of the Supreme Court stated:

Prior to admitting statements under the principled exception to the hearsay rule the trial judge must determine on a voir dire that necessity and reliability have been established. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.

[5] And at Paragraph 49 of Khelawon, Charron, J. stated:

The criterion of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interest of justice to consider whether it should nonetheless be admitted in its hearsay form.

[6] Necessity could also be found where the witness is physically unavailable, where the child cannot testify, or where testifying would likely prove unduly traumatic—unduly traumatic for her or where it is unlikely the child could give a coherent and comprehensive account of events.

[7] See R. v. Rockey, [1995] O.J. No. 1677. The Rockey case appeal to the Supreme Court was dismissed, see , [1996] 3 S.C.R. 829.

[8] At this stage of the proceedings the Court is concerned with the threshold reliability rather than the ultimate reliability. Ultimate reliability will be an issue at the conclusion of all of the evidence and will be weighed at that time when a verdict must be given.

[9] From my previous ruling during the trial that the Crown had met the burden required for threshold admissibility, the following portion of the judgement relates to my reasons for so concluding. This evidence was heard in the context of a blended voir dire with the understanding that if ruled admissible under threshold admissibility, it would become evidence at trial.

Evidence of S.B.2 (D.'s Mother)

[10] The first witness called was S.B.2, D.'s mother. S.B.2 testified that D. was placed in daycare with the accused from November 2010 to May 2012. She was quite satisfied with the service provided by the accused and D. enjoyed her time there. Soon thereafter S.B.2 went on maternity leave. She returned to the workforce in February of 2013 and in April of 2013, D., now age three, returned to the accused's daycare.

[11] The family routine was that S.B.1, D.'s father, would drop D. off in the morning and S.B.2 would pick her up at 4:00 to 4:15 in the afternoon. They were aware that during nap time, or quiet time, at daycare that D. would stay in R.'s room.

[12] On May 15th, 2013 S.B.2 picked up D. at the accused's daycare. The accused told her that all went well that day. As S.B.2 drove to her next destination she asked D. what she did this day. D. replied that it was raining and that they didn't go outside. D. went on to say that during quiet time the accused came into the room and put his penis in her hand. D. then said that if she stopped he'd be mad and put it in my mouth. S.B.2 asked if this had ever happened before and D. replied, yes, I was playing in R.'s room playing with her mermaid toy and Jeff came in and put his penis in my mouth. All of D.'s comments were in her usual tone of voice. S.B.2 replied calmly that's good to know, we'll talk to Daddy about it. She then proceeded to pick up K., another child of the B.'s, and then proceeded home.

[13] S.B.2 testified that when K. was born they took the opportunity to discuss with D. certain body parts, including the penis and vagina and what their non-sexual functions were. For example, the penis was to pee with. There was no sex education discussion and no explanations of what good touch and bad touch meant, or what constituted a good or bad touch. S.B.2 testified they never observed any sexual play and never heard D. talk of matters related to sex. D. had never seen them having sex and they were not aware of her having seen oral sex, and they never discussed sexual activity in front of her.

[14] When S.B.1 returned home S.B.2 pulled him aside and related what D. had told her. D. repeated what she had told her mother. She used the same ordinary matter of fact tone of voice. The B.'s let her talk and D. told them of holding, and licking, and putting her mouth wide over a portion of the bannister to demonstrate the holding and licking. D. told them that the accused didn't say anything when this was being done.

[15] The B.s tried very hard not to react and to deal with this revelation as a normal conversation. They wanted this disclosure to be in D.'s own words. The B.'s initially didn't know what to do. There was some initial reluctance to call the police because they liked and trusted the accused. They did decide to call the police that evening.

[16] The next day, May 16th, 2013 they went to the police station. The B.'s didn't tell D. why they were going there. They, the parents, said they were going on an adventure. S.B.2 was interviewed first, D. second, and S.B.1 third. S.B.2 did not talk to D. between interviews.

[17] S.B.2 testified that on May 16th at breakfast before they left for the police station D. had commented that she didn't like Jeff anymore.

[18] S.B.2 testified that after May 16th, 2013 she noted some changes in D. She said D. would "freak out" if they drove on roadways leading to the accused's daycare and would comment I don't want to go there. While D. had had nightmares prior to May 16th their frequency increased. She became angry if things didn't go her way, and she was reluctant to let males touch her. She saw counsellors at C.H.E.O.

[19] On April 30th, 2014 Detective King contacted the B.s who brought D. to the police station for another interview, this time to see what recollection D. had of the events that lead to the charges now before this Court.

[20] S.B.2 testified that D. asked why Detective King asked her about Jeff, and D. asked her what did Jeff do? S.B.2 asked her if she recalled telling us what Jeff did and D. replied, no, what? S.B.2 even used leading prompts, yet D. could not recall the incidents in question. D. also didn't want to talk about the accused. The B.s testified that they didn't believe D. would answer questions about the accused if brought into a court to testify.

[21] S.B.2 stated that she was never present at any police interviews of D., nor has she viewed any recording of these interviews.

[22] The B.'s did not know the M. family prior to these mid-May 2013 revelations by their children. The B.s indicated they received an e-mail from Mr. T.M., or the M.s, on May 17th but did not respond.

Evidence of S.B.1 (D.'s Father)

[23] S.B.1 testified that S.B.2 asked D. to tell Daddy what you told me in the car when Jeff came into the room at quiet time. He testified D. said that during quiet time in R.'s room Jeff came in, put his penis in her hand and told her to rub his penis and if she stopped he'd be mad at her. This was related in a normal tone of voice. D. also said without any questioning by S.B.1 that she licked, and then made a licking motion. The inference he made is that it was a licking of the penis.

[24] After dinner one of the B.'s asked D. what happened during quiet time. According to S.B.1, D. said much the same thing as she had said prior to dinner, but didn't say anything about licking the accused's penis. She said she kissed it and made a kissing motion. D. was in a stairwell near a bannister and she "almost sort of kissed the bannister", testified S.B.1.

[25] S.B.1 also testified that D. never engaged in sexual talk, or had been instructed on sex, or engaged in sexual behaviour, or had seen them having sexual relations. He also testified that he noted certain changes in her behaviour after May 16th, 2013, similar to the changes noted by S.B.2.

[26] S.B.1 testified that between the May 2013 and April 30th, 2014, interviews of D. she never mentioned the accused's penis, and they, the B.'s, never brought up that subject. D. did on occasion mention a T.V. show they saw or the bouncing castle at the accused's place.

[27] It is S.B.1's opinion that since D. has never mentioned the events at the daycare that resulted in criminal charges she now cannot recall them. If called to testify, he feels her level of anxiety would increase, her school behaviour of inattentiveness, disruptiveness and disobedient actions would return as would clinging to her mom, and the exclusion of males would likely return. He also testified that they chose the accused's daycare because they felt comfortable and at ease with the accused. He recalls receiving an e-mail from one parent which he did not reply to.

Evidence of C.M. (A.'s Mother)

[28] C.M. is the mother of A. and spouse of T.M.. A. had just turned five on [date redacted], 2013.

[29] C.M. testified that A. returned to daycare in September 2012. She was in junior kindergarten and went to school in the morning and spent the afternoon at the accused's daycare. A. had naps on Monday, Wednesday and Friday on the living room couch. Tuesday and Thursday she would watch movies during quiet time in the same room.

[30] A. was familiar with words such as penis and vagina and used them appropriately testified C.M.. She was also familiar with the concept of good and bad touch.

[31] On May 16th T.M. received a call from Children's Aid Society to pick up A. at the accused's daycare. Then Detective King called and asked the three of them to come in for an interview.

[32] At this point of time the interview of A. was just part of the general investigation of the accused. There had been no allegations that A. had been victimized up to this point.

[33] The next day the family went to the cottage. As they prepared to leave the cottage in the PM C.M. and A. went to the bathroom, where testified C.M., A. noticed her pubic hair and said you have hair there, you must have a penis. Then A. said, Jeff's penis is larger than Daddy's. He doesn't wear underwear under his shorts, I seen it. I see Jeff's penis more than I see Daddy's. C.M. asked her if he asks her to touch it, and A. replied "yes". C.M. asked her what do you say, and A. replied "No, no, no". A. also said this occurred on movie days, that it hadn't been going on too long, and that he, Jeff, had never touched her vagina. C.M. testified that A. disclosed this in a matter of fact manner. The police were called and on May 19th, 2013 a second interview was conducted.

[34] After this disclosure by A. T.M. took five or six weeks off work and C.M. took a year off from her teaching job in order to deal with any problems that might require a response with respect to A.

[35] C.M. testified that after A.'s May 2013 disclosure to her and up until September 2013 A. would bring up Jeff's name many times for playing basketball, for his penis size, and how often she'd seen it. C.M. testified that A.'s memory about events one year or longer in the past is characterized by vagueness, can occasionally recall details but is very inconsistent and random. She doesn't believe A. could provide details about the time spent at the accused's daycare.

[36] C.M. testified that A. had never seen them having sex, was not aware if A. had ever seen any sex acts, and they never discussed masturbation with A.

Evidence of T.M. (A.'s Father)

[37] T.M. testified that A. had become more attached to her parents, and anxious about new situations, and didn't like to be left alone. He expressed concern about the court process itself and the prospect of A. being asked by people she doesn't or barely knows about the events that gave rise to the criminal charges. He felt it would harm her and cause anxiety. He was also concerned that the process would allow A. to conclude that something bad had happened to her.

[38] C.M. stated much the same thing as her spouse about the effect of having to testify. She expressed concern that digging up forgotten memories would cause A. to regress somewhat in terms of her relationship with her dad and men in general.

Evidence of Detective Lisa King

[39] Detective Lisa King had been working the past two and a half years of her police career in the Sexual Assault and Child Abuse section of the Ottawa Police Service. They are considered a speciality section within the police service and have to take specific training in investigation of child offences and receive certification in these courses before they are allowed to interview children.

[40] Upon arriving at work on May 16th, 2013 she was assigned this investigation. The B.'s had called the evening before concerning the information they had available with respect to their daughter D. She then arranged for D. and her parents to be interviewed that same day. S.B.2 was interviewed first, D. second, and lastly Mr. S.B.1.

[41] On May 17th, 2013 Detective King interviewed A. When the interview was conducted Detective King had no allegations of any misconduct involving A. and no prompts or leading questions were put to A. The May 17th interview with A. was simply part of the general investigation involving Mr. Wills' daycare children. Detective King did not provide any details of the offences alleged, or who might be victims.

[42] That same day, May 17th, 2013 Mr. Wills was arrested. On that evening, a Friday, Detective King informed the M.'s of accused's arrest but provided no other details.

[43] The following day, May 18th, 2013 at about 10:30 p.m. Detective King was informed by Mr. T.M. in a phone call that A. had made certain disclosures to his wife. In the background Detective King could hear C.M. sobbing. Since their initial meeting on May 17th there had been no contact with the M.s. She did not advise the M.s that Mr. Wills had been released from custody that Saturday morning.

[44] On May 19th, 2013 A. was interviewed again where she provided certain information. (See Exhibit No. 5). Detective King never disclosed the names of other complainants to the other families and was careful to ensure complainants and families did not meet at the police station. She never disclosed to parents what their children disclosed in the interviews, and only the charges are told to families, never the allegations or details that resulted in those charges.

[45] In order to determine what D. and A. recalled of the events giving rise to the charges, they were re-interviewed on April 2014 by Detective King. A. was interviewed on April 17th, 2014. While she recalled having gone to Mr. Wills' place she could not recall what she did there. D. was interviewed on April 30th, 2014, she had no recollection of going to Mr. Wills' place for daycare.

Police Interview Statements

[46] In the police interviews on May 16th, 2013 D. reiterated what she had disclosed to her parents in greater detail. (See Exhibit No. 3). She said that while alone in R.'s room during quiet time Jeff would come in totally nude and put his penis in her mouth and that she sucks it, sometimes licking it, and then go up and down with her hands. She said this occurred on two occasions, that nothing came out of his penis, and that Jeff said nothing afterwards and simply left the room.

[47] In the police interview, (Exhibit No. 5), on May 19th, 2013 A. stated that when she doesn't nap during quiet time she watches a movie. The only other person in the room would be Jeff. A. recounted that when she'd not be watching the movie she'd see Jeff's penis, which she described as "really big". She said "He pulls down his pants every time he rubs his penis". When Detective King asked how he rubs his penis A. replied "Like some stuff in a towel". A. stated no words were said when this occurs, she initially said that Jeff had never asked her to touch his penis but shortly afterwards said Jeff asked her every day to touch his penis but that she didn't do it. A. said this happened every movie day.

Analysis of Necessity and Threshold Reliability

[48] I will now deal with the necessity and threshold reliability issues. As stated in Paragraph 29 of Kahn, "necessity for these purposes must be interpreted as reasonably necessary".

Necessity for D.

[49] In my view, necessity has been made out in the case of D. It must be remembered that she was only three years of age when the incidents occurred. I find on the evidence I've heard that she would be very unlikely to provide a coherent and comprehensive account of events. Nothing would be accomplished by having her testify in court since it is clear she has a lack of memory of the events and is not prepared to talk about whatever memory she may have left. Bringing her to a court to testify would cause her undue trauma in these circumstances. D.'s parents testified that after the initial disclosure of the accused's behaviour in May 2013 she experienced more nightmares and she had difficulty in relating to males.

Necessity for A.

[50] With respect to A. it is my view necessity has been made out as well. She had just turned five when she made her disclosure to her mother. While she did mention having seen Jeff's penis on occasion after the May disclosure, she had stopped mentioning that by September 2013. Her parents made concerted efforts to not mention to offences to D. The April 17th, 2014 interview with Detective King provides some evidence of her lack of recall of what was done that resulted in the criminal charges now before me. D. was able to recall random facts such as playing basketball, but as I've said, not those facts that comprise the allegations against the accused. D. would thus not be able to provide a coherent and comprehensive account of events.

[51] According to her mother A. would be scared and there would be the chance the efforts made to keep her from remembering would be negated or undone. This, is it argued, would cause her undue trauma.

[52] T.M. had testified that after the initial May 2013 disclosure A. had become more attached to them, become anxious about new situations, and didn't like to be left alone. He expressed concern about the court process itself, with A. being asked questions by people she barely or didn't know about the subject matter of these charges. He felt this would cause her anxiety and emotional distress, and expressed concern that the process itself would allow A. to conclude that something bad had happened to her. Crown counsel submitted in argument that what T.M. was actually saying was that the experience of testifying would be victimizing her in a different way than the actions alleged to have been committed by the accused. In my view, her having to testify in these circumstances would cause her undue trauma.

Threshold Reliability Analysis

[53] Crown counsel has proceeded under the Kahn and Khelawon line of cases where threshold reliability can be established by indicia of inherent reliability. This can be found in the nature of the statement itself and the circumstances under which the statement was made. This is called substantive reliability.

[54] In R. v. P.C.C. [2007] O.J. No. 1171 the Ontario Court of Appeal stated at Paragraph 6:

The trial judge made specific findings rejecting the arguments that were made to him concerning the presence of suspicious circumstances relating to the complainant's disclosures and concerning alleged weaknesses in the foster mother's testimony. Further, he relied on four factors as providing a sufficient circumstantial guarantee of trustworthiness to justify the admission of the out-of-court statements: i) five year-olds do not generally have any knowledge of the type of sexual conduct that the complainant attributed to the appellant; ii) similarly, five year-olds do not generally have the capacity to fabricate the explicit descriptions of sexual conduct that were provided by the complainant; iii) the foster mother's description of the pattern of gradual disclosure had the ring of truth; and iv) he was satisfied that the foster mother did not try to persuade the complainant but, rather, simply encouraged the complainant in an indirect and unimposing way.

[55] Similarly, in Kahn, the Court referred to a lack of motive to lie, that the statements were made in the natural course of conversation without any prompting or influencing by the recipient of the account.

Reliability of D.'s Statements

[56] D. on May 15th, 2013 described to her mother what had happened that day. It was in response to a normal every-day question from her mother. D. later repeated her disclosure to her father and did so again in the police interview the next day. This could be seen as some indication of accuracy and reliability. D. in the May 16th interview showed that she did not know what the words "truth" and "lie" meant, but she did demonstrate that she knew fact from fiction and real from pretend. D. had no motive to lie. She was only three years of age and would not have the knowledge of the sex acts involved in those offences involving her. Case law i.e. Khelawon, P.C.C., recognize these factors as compelling indicia of reliability.

[57] D.'s account in the May 16th, 2013 police interview revealed that she is an accurate historian. For example, she knew the name and age of her brother, knew where her mom and dad went each day i.e. to work, knew which daycare her brother went to i.e. that is C.'s, and knew the names of the other children at the accused's daycare. D. account of the offence itself is confirmed by the surrounding circumstances. She said it occurred in R.'s room at nap time when she was alone. All of this is accurate. There is a nap time during which D. is alone in R. room. D. said "Jeff's penis was tight", which it is submitted by Crown counsel, indicates he had an erection which one might reasonable expect to be true in the circumstances she described.

[58] As I previously mentioned, D.'s version of the events came out naturally and during a routine everyday type of conversation with her mom. At home that evening some prompting took place but only about the subject matter and not about the details. In the police interview I find that Detective King did not lead or prompt D. and I disagree with defence counsel who characterized the interview as being devalued by leading questions. Detective King would sometimes recapitulate a previous answer given by D. as a lead-in to the next question. This is not a leading question.

Reliability of A.'s Statements

[59] I will now deal with the substance of reliability of A. out-of-court statements.

[60] While the M. family may currently have some animus towards the accused, at the time A. disclosed what Jeff was doing during movie time they had no such animus.

[61] While A. stated in her first police interview that she didn't like Jeff she could not articulate why as she didn't realize, or know, what Jeff did was bad. I might also point out that Detective King did assume responsibility for not eliciting disclosure of the incident during that first police interview as she didn't point A. in the proper direction or ask the proper questions. She also didn't know what had occurred with respect to A. as this first interview was prior to A.'s disclosure to her mother.

[62] That first disclosure to her parents was spontaneous and not the result of any questioning by them. A.'s parents didn't know of the allegations against the accused when A. made her first disclosure. They only knew it was something sexual in nature but where unaware of any details or specifics. On A.'s second police interview I find that her responses were not prompted by leading questions, and if it could be said some were leading, they were of the type that are asked simply to lead the person to the matters at hand.

[63] A. gave considered answers to Detective King and did not simply agree with everything said by Detective King. For example, when Detective King asked a question which began with some like "when he was watching the movie with you" A. would respond that he wasn't watching the movie. He was there but he wasn't watching the movie. A., in my view, clearly demonstrated that she understood the difference between the truth and a lie. She understands that she is in the truth room and that she will tell the truth.

[64] A. had no motive to lie, and she was of an age where she wouldn't know what the accused was doing, that is masturbating. A.'s parents confirmed this.

[65] A. said that the accused's acts occurred during movie time when she was alone in the living room with the accused. There is in fact a movie time twice a week and A. does watch the movies on the living room T.V. These facts provide some confirmation that A.'s statements are reliable.

[66] A. described the accused's penis as larger than her father's. She said this to her mom and to Detective King in the second police interview. It is a reasonable inference to conclude that what she observed was an erect penis and that the accused was masturbating. She also stated that he rubs it with a towel. All of this is to say that these circumstances and bodily parts she describes constitute some confirmation of her account as reliable and accurate, rather than something prompted by parents or police, or that it is something she imagined.

Admission of Out-of-Court Statements

[67] All of D. and A.'s out-of-court statements will thus be admitted into evidence having met the reasonable necessity and threshold reliability tests or burden.

Similar Fact Evidence

[68] Crown counsel has moved that I consider the acts involving the two complainants as similar fact evidence. In the case at bar the similar acts are very close in time. Both involved young females, aged three and five. Both occurred in the accused's home where both complainants where under his care in a daycare he operated. Both occurred during quiet time during which each child occupied a separate room alone. In both cases the accused wore no underwear. The sex acts and the sexual exposure with the two complainants differ, one involved the placing of his penis in the three year old's hand and mouth, while the acts involving the five year old involved no actual physical contact. In both cases it appears the accused had an erection but in neither case did the complainants observe any ejaculation.

[69] This evidence is highly probative. In R. v. Finelli [2008] O.J. No. 2242 (O.S.C.) Spies, J. stated the following at Paragraphs 27 to 29:

27. Accordingly for the purpose of this analysis I accept the Crown's position that for the purpose for which this evidence is being adduced is to demonstrate a specific propensity on the part of Mr. Finelli to exploit his status as a family friend and overnight guest in order to sexually assault prepubescent girls in their own homes by fondling them. As such, it is being tendered to prove the actus reus of the offence.

28. The probative value of the similar fact evidence tendered in this case depends upon two inferences from the evidence, one, that Mr. Finelli has this specific propensity to act in a particular way, and two, that he actually acted in conformity with this propensity at the time of the assault alleged by the complainant.

29. While propensity underlies the probative value of true similar fact evidence, the breaking point between general propensity and specific propensity is most easily understood as depending upon the objective improbability of coincidence. In other words, the closer the circumstances of the similar acts resemble the circumstances under which the charged act was committed, the less likely the similarity can be explained by coincidence. Put another way, as a matter of common sense, it is against all probability that in light of what the Crown can show that Mr. Finelli did to the three similar fact witnesses on other occasions, it is a mere coincidence that the complainant is not telling the truth when she describes what she alleges Mr. Finelli did to her on this occasion?

[70] It is obvious that the acts involving the three year old D. and the five year old A. are not what one would normally call similar. However, differences in sexual acts does not necessarily preclude similar fact evidence.

[71] In R. v. B. (M) [2008] O.J. No. 2358:

... the Ontario Superior Court provided guidance on how to asses differences in similar fact evidence, stating that "it is important to consider whether or not they [the differences in the evidence] detract from either of the inferences the Crown seeks to draw from the similar fact evidence. The difference as cited sighted included:

a) The main complainant was a boy and the similar fact witnesses are girls;

b) The boy does not allege that his uncle sexually assaulted him;

c) The acts occurred in private in the presence of other children;

d) There were discrepancies as to when one of the sexual assaults occurred;

e) The length of time the children alleged the forced intercourse occurred;

f) The boy alleged that his uncle ejaculated while the girls did not;

g) The boy alleges anal intercourse while the girls allege vaginal intercourse.

[72] Albeit such differences the Court found that the evidence was capable of giving rise to an inference that Mr. B. has a specific propensity to engage in sexual activity with young prepubescent children within the family home and exploits his status as a trusted and close member of the family, their uncle, and admitted that evidence.

[73] Likewise in R. v. B. (R.), [2005] O.J. No. 3575 (O.C.A) The Ontario Court of Appeal admitted evidence of similar fact despite the distinction in the acts perpetrated by the accused against both victims. Some alleged genital fondling and masturbation, whereas two complainants alleged anal intercourse. Notwithstanding this distinction the probative value of the evidence demonstrated a high degree of connectedness between the evidence and the issues at trial, namely the accused's specific propensity.

[74] Similarly in this case, the similar fact evidence demonstrates a high degree of connectedness and the Crown's motion to admit the evidence as similar fact evidence is thus granted.

Assessment of the Accused's Evidence

[75] The accused testified at the trial. His evidence can be summarized as a simple denial that he committed the acts alleged. As such, I must be guided by the principles set out in R. v. W. (D.) [1991], 63 C.C.C. (3d) 397 (S.C.C.) a decision of the Supreme Court of Canada. Cory, J. for the Court stated:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but are left in a 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.

[76] I should note that I as a trial judge am not obliged to pick one version, (that is D. and A.'s) or the other version, the accused's. The burden always remains on the Crown to prove guilt beyond a reasonable doubt.

[77] The accused, as one might reasonably expect of the operator of a daycare centre, has, from what I know, a spotless background. His clients trusted him with the care of their young children. That in essence is why cases such as this are difficult to decide.

[78] Offences such as these by trusted individuals, whether they be daycare workers, member of the Clergy, or coaches of sports teams, are almost always committed in private and witnesses other than the complainants themselves are scarce to non-existent.

[79] This case is somewhat different because of the existence of the similar acts which serve to corroborate or confirm each of the complainant's evidence.

[80] As I indicated previously the accused's defence is simply that the acts complained of didn't happen. That is the most basic and simplest defence one can imagine. The only comparable I can think of at the moment is the alibi defence where the acts itself are not an issue but the accused says "it wasn't me because I wasn't there".

[81] Yet for some reason the accused raised as an issue of possible animus the M.'s may have had. While the M.'s may understandably now have such an animus it clearly didn't exist in mid May of 2013. Everyone was happy with the quality of daycare being then provided. The fact that the accused would use this as part of his defence when animus clearly did not exist makes his evidence sound unbelievable and does provide a reason to find it unworthy of belief.

[82] The accused also felt it was necessary to provide the Court with colour coded charts, photographs and floor plans. Again, none of this was at issue. Clients were happy with the service and the material he provided wasn't germane to any of the issues in this trial or to any assessment of his credibility. In my opinion, he simply tried too hard to present himself as a top quality daycare provider when it was never an issue.

Ultimate Reliability and Verdict

[83] With respect to the matter of the ultimate reliability of the complainant's out of court statements to parents and police, I have concluded that in all of the circumstances they are very reliable. The reasons for so concluding can be found in my review of the circumstances noted in deciding the threshold reliability issue. I do not intend to repeat them at this point. The reliability—the ultimate reliability is also buttressed by the similar fact evidence.

[84] I wish to place on record that I am aware of what should be the Court's approach to assessing children's evidence. I will simply refer to the case of R. v. A.T. [2013] O.J. No. 169 (O.S.C.) where Mossip, J. in Paragraph 44 to 50 reviews the legal principles with respect to assessing child witnesses testimony.

[85] Based on all of the evidence, and on my opinion that D. and A.'s evidence is accurate, truthful, and reliable, the Crown has proven guilt beyond a reasonable doubt.

[86] An alternate way of reaching the same conclusion would be by the reasoning of the Ontario Court of Appeal in R. v. J.J.R.D. [2006] O.J. No. 4749 at Paragraph 53 where the Court stated:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

Verdict

The accused will be found guilty on all counts.

Sentencing Proceedings

MS. CUNNINGHAM: Thank you, Your Honour. The Crown submits that this would be an appropriate case for a Section 21 Mental Health Act assessment including the Sexual Behaviours Assessment prior to sentencing.

THE COURT: Okay, there will be a Section 21 M.H.A. Act assessment to include a Sexual Behaviours Assessment. Is there any need for a P.S.R. if one of these are being prepared?

MS. CUNNINGHAM: I don't think so, Your Honour. I think those reports are pretty thorough and I think it's unnecessary to duplicate the efforts.

THE COURT: Okay, do you know how long it takes?

MS. CUNNINGHAM: I think six to eight weeks is generally appropriate unless they run into some scheduling issues.

THE COURT: Ms. Reid, issue with that?

MS. REID: I think it's going to end up taking longer than eight weeks but we can start with that.

THE COURT: Do you want to have a reporting date then?

MS. REID: We could do that then.

THE COURT: Say in a month's time, we can find out where everything's at. April 22nd?

MS. CUNNINGHAM: That's a suitable day for me.

MS. REID: I have a trial and—at number 10, so if we could do....

THE COURT: Number 10?

MS. REID: Number 14.

THE COURT: Could you appear at nine o'clock? Simply an update as to where we're at in the preparation of the reports.

MS. REID: I expect to have some remands that day and in between seeing the....

THE COURT: Okay, how about 23rd of April?

MS. REID: Sure, that's good thank you.

THE COURT: April 23rd, 9:00 a.m., as of now I'm scheduled for court two. Although you might be aware they change schedules, sometimes every day or twice a day.

MS. CUNNINGHAM: And that will be a to-be-spoken-to as a status check?

THE COURT: Just to-be-spoken-to. Ms. Cunningham does the accused have to report anywhere or do they contact him?

MS. CUNNINGHAM: I believe he does have to contact the Royal Ottawa Hospital although they will also likely get in touch with him if he doesn't do that. But I think typically it's recommended that they give them a call, but we will—Mr. Clerk and I together will prepare a package that will be faxed to the Royal Ottawa Hospital, so they'll be aware of his referral.

THE COURT: Alright, that's how it's done. Mr. Wills, stand please. I'm ordering a Section 21 Mental Health Assessment be prepared, that will also include a Sexual Behaviour Assessment. I'm going to set a reporting date of April 23rd, 9:00 in court two, that will simply be a status check to find out at what stage the report is at. At that time hopefully we'll set a date for your sentencing hearing.

MS. REID: I've filed a designation, I believe, Your Honour, so I expect that I'll appear at 9:00 o'clock at that day.

THE COURT: Well if there's a designation filed you can appear.

MS. REID: There is a designation filed.

THE COURT: Is there, Mr. Clerk?

CLERK REGISTRAR: There is, Your Honour.

MS. REID: Thank you.

THE COURT: Well you can let your client know, you can have a seat. Just with respect to the out-of-court statements admitted, they include the statements made—with respect to D. B. to the mother and father, Detective King—both statements. With respect to A. M. it's to the mother, father, and all three statements to Detective King.

MS. CUNNINGHAM: Thank you.

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Jaime L. Oliver, certify that this document is a true and accurate transcription of the recording of R. v. Jeffrey Wills in the Ontario Court of Justice held Monday, March 16, 2015 at 161 Elgin Street, Ottawa, Ontario taken from Recording No. 0411 CR11 20150316 092534 6 NADELLJ.dcr, Courtroom No. 11, which has been certified in Form 1.

(Date)

COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND NOT AUTHORIZED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE REPORTER

Ontario Regulation 158/03 - Evidence Act

*This certification does not apply to the (Rulings, Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.