WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 02 15 COURT FILE No.: Pembroke 21-0533

BETWEEN:

HIS MAJESTY THE KING

— AND —

KL

Before: Justice J.R. Richardson

Heard on: December 9, 14, 2022; January 11, 2023 Reasons for Judgment released on: February 15, 2023

Counsel: Marc Lecorre....................................................................................... counsel for the Crown Forest Poff-Smith......................................................................... counsel for the accused

RICHARDSON J.:

Introduction

[1] KL is charged with sexually assaulting and sexually interfering with JB, a person under the age of 14, between and including the 23rd day of May, 2001 and the 22nd day of May, 2003 in the Township of Killaloe, Hagarty and Richards.

[2] Killaloe is a small town that is now part of the Township of Killaloe, Hagarty and Richards in southern Renfrew County. It has an interesting history. Originally a railway town as a stop on the Ottawa, Arnprior and Parry Sound Railway, the town declined after the railway was abandoned. Forestry is the primary industry. Tourism, given the area’s proximity to Algonquin Park and the many lakes and rivers in the area, is the secondary industry. It is close to Wilno, which is distinguished as being home to the first Polish community in Canada. The area is widely known to have been home for a number of “hippies” in the 1960s and 1970s who came to the area because the land was cheap. The village’s population is less than 1000 people. Today it is a rural, remote area that many from the City would describe as “off the beaten track”. It also tends to be an area with a lot of poverty.

[3] When this incident arose, JB was a young Grade 7 student interning at Killaloe’s community radio station, CHCR, “Killaloe Home Grown Community Radio, 104.5 or 102.9 in the Valley”.

[4] KL worked at the radio station. His date of birth, according to the information, is July 18, 1969. Between May 23, 2001 and May 22, 2003, he would have been between 31 and 33 years of age.

[5] JB says that KL sexually assaulted her and sexually interfered with her.

[6] This case turns on the assessment of credibility and reliability of JB.

Evidence of JB

[7] When JB testified, she was 33 years old. She works at home. She is the mother of four children ages 14, 11, 4 and 2. She has a record for theft from when she was 19 or 20. JB grew up in Killaloe, Ontario. She recalled that she moved to Killaloe when she was in Grade 4 and she left when she was 16 years old. She told me that she had autism but she did not think it would affect her testimony, other than with respect to numbers. “I am bad at math”, she explained.

[8] JB’s birthday is May 23, 1989. On May 23, 2001, she turned twelve years of age. On May 23, 2002, she turned thirteen and on May 23, 2003, she would have turned fourteen.

[9] The age of consent was 14 when these charges arose. It was increased to 16 in 2008.

JB’s Mentorship at the Radio Station

[10] JB testified that when she was in Grade 7 in Killaloe, there was a community radio station. “Everybody was so into it”, she stated. She started hanging around at the radio station where she mentored under a number of people. KL was one of the people who she mentored under.

[11] Later in cross-examination, she stated that she started going to the radio station when she was in Grade 6 and “regularly hanging out there” when she was in Grade 7. She recalled that she was introduced to the radio station when she went there with a friend. The friend’s mother had a show called “Livesy Zoom” and she went along one day to check it out. She recalled that the radio station was one of the places in town where she and her friends would go to hang out.

[12] She reported that her mentorship at the radio station entailed sitting in on various shows, helping retrieve records, eight-tracks, CDs and whatever was needed. She stated that she was shown how to operate the turntables and eventually she got her own show. She estimated that between six and eight months after she started her mentorship she got her own show. In cross-examination, she recalled that the man who operated the radio station believed that anyone could be a radio personality and that’s why she thought she could do it.

[13] In cross-examination, she also elaborated that she learned “what buttons to push” to put eight-tracks in to play sound effects. She learned how to play advertisements. She learned how to bypass and mute vocals in order to play advertisements or sound effects. She learned how to line up songs to be played which were either on vinyl or on CD. She agreed that this was “a little” complicated. She stated that there were other kids who had shows of their own.

[14] She stated that she hung out there about three nights a week. She agreed with defence counsel that it was a place to hang out to avoid going home. “It was a little bit of an escape”, she said.

[15] Her show had several names, including “Shiny Bubble” and “Cheese makes all the difference”. She described her show as a “modge-podge of random things.” She did anything she liked. She stated that she had eclectic musical tastes.

[16] In cross-examination, she stated that people were “in and out” of the radio station all the time. She estimated that between ten and fifteen people were involved that were there quite often. They had a cycling system so not every show was live. Sometimes she would be there alone. Other times, a couple of people would be there. She also recalled that sometimes up to ten people would be there for a board meeting. There was a schedule. It was random.

[17] She stated that it was “pretty open” and that community members would go and hang out and meet other people there, even if they were not involved with the radio station. The door was often unlocked particularly in the summer. Even if the door was locked, it was common knowledge where the key was. Later on, the locks were changed and a keypad was installed. The code for the door also quickly became common knowledge.

[18] JB testified that she is “not sure” if she disclosed her age specifically when she was interning. “I do remember telling people that I was excited because I was only in Grade 7 and I thought it was so amazing that somebody in Grade 7 would be doing this”, she said.

[19] In cross-examination, JB was able to recall the names of several adults who had shows at the radio station when she was mentoring. She recalled one man had a show called “Walking Dogs”. She recalled that Rick Reimer would let her watch him “but sometimes he would chase me out because I asked too many questions.” She stated that she was “non stop questioning things”. She agreed with the suggestion that she got “really into” the radio station and stated that it brought her a lot of enjoyment. She agreed that she wanted to impress her mentors. She stated, “It made me feel heard and important.”

[20] She agreed with defence counsel that she was sometimes trying to act more mature than she felt. She tried to appear well-versed and well read. She would ask the adults to recommend books. She stated, “I was very hungry for knowledge and experience.” She recalled that one of the adults was the first person to introduce her to the writing of Steven King. Another adult recommended Where the Wild Things Are.

[21] She denied that she cooked there often. She stated that she tried to make pancakes there once. She also recalled that there was a community centre where one could get some soup. She stated that she would go home and get food.

[22] JB could not recall when she first met KL. She remembered seeing him at a community event where he was playing music. She could not recall when she first started working with KL at the radio station. She recalled sitting in one of his shows, which she believed was called “Cousin [KL]”. She remembered that he put his finger up while she was in the booth to tell her to be quiet. She recalled putting her hands over her mouth to laugh.

[23] She said that she started working at the radio station when she was in Grade 7 in April, May or June. She recalled that it was hot outside and they had fans in the radio station.

[24] She agreed that she was always trying to impress her mentors, including KL. She stated, “I was trying to act so that they didn’t think I was some kid at the radio station bugging them.” She reported that KL would tell her about things that were going on his life, including problems that he had and people that he had trouble with. She would frequently ask him if he wanted to talk. She agreed that she was a sounding board. “It always seemed like something was going on in his life”, she stated. He would swear a lot or get frustrated. “I thought I was being a good friend to listen and talk”. When defence counsel asked her if she made herself out to be more mature than she felt, she stated, “I tried to carry myself with poise. I wasn’t the typical 12 year old. That’s kinda how I was raised. I was raised to hold my own with adults.” She recalled that her father had told her that, “Kids should be seen and not heard. If you are heard you need to know what you are talking about.” She described it as “fake it until you make it. Even if she did not know what they were talking about – for example a specific book, she would say “Oh yeah, I’ve read that book”, even if she had not. She agreed that she interacted with KL the same way.

[25] Although she agreed that she was I trying to give an air that she was “more mature”, she stated, “I was never trying to seem older than I am.” She recalled that she remembered thinking to herself, “Don’t say I like Pokemon”. She stated that she wasn’t into things that other kids were into. She agreed that she was often told that she came across as more mature.

[26] When defence counsel specifically suggested to JB that she did not tell KL how old she was, she stated, “I don't believe so. I talked about it all the time. I had to be the coolest kid.” She stated that she was the youngest to have radio show and she was only in Grade 7. “It was always something I was blabbing about. I couldn't wait to tell the entire world.”, she said.

[27] JB testified that most of the time her interactions with KL were appropriate. He showed her the ropes about different things that she could do. She also stated that he gave her cigarettes, swore a lot in front of her and smoked weed with her. She stated that now that she was adult, she realized that some of these things were not appropriate.

[28] She also stated that KL would make comments about her body, in particular her chest and her butt.

[29] With respect to smoking cigarettes and weed, she recalled that there was a patio on top of the IDA drug store. She recalled that other people associated with the radio station would show up and smoke, including a “lawyer/activist” named Rick Reimer. She stated that she was not the only kid who smoked at the radio station. It was accepted and she did not feel she needed to hide it. She stated that a lot of the adults would look at her and say, “You know you shouldn’t be smoking”. She stated that she would butt it out but then start smoking again. She believed that they told her that she shouldn’t be smoking because they knew her age.

[30] When the incidents involving KL took place, he was “kinda” living at the radio station. There was large room off of the board room that was his makeshift bedroom.

The First Incident – the Kiss in “Studio B”

[31] When the first incident took place, KL was sitting next to JB. She said that he was frustrated about something and he hit the desk with his fist. She asked him if he wanted to talk. “He put his hand on my leg and kissed my neck.”, she said. She stated that she “seized up and froze” and “didn’t know what to do.” This incident happened in the room that was his makeshift bedroom. No one else was there. There might have been a pre-recorded show that was transmitting. JB could not remember whether the door was open or closed. She recalled that the door did not have a window. She did not want him to kiss her or touch her.

[32] Immediately after this happened KL pulled back from her and stated, “Oh I shouldn’t be doing this.” She said that he told her that she was soft and sweet. She said she got up “stiffly” and “left quickly”.

[33] In cross-examination, she agreed that KL’s room was actually referred to as “Studio B”. With respect to how it was that she went in there, she stated “I don't remember if I just wandered in or if I was doing stuff or if he called me in. That's not something I can remember.”

[34] In cross-examination, she could not recall whether it was cold outside when the kiss took place or what time of day it was. She stated that it as most likely mid-afternoon to early evening. She did not have a specific memory. She said that it wasn’t dark.

[35] Defence counsel put to JB that in her Police statement she stated that it was dark. JB clarified that she “felt” dark. She stated, “That’s how I meant it.” She stated that there were couple of mistakes in her statement and this was one of them. With respect to her memory, she stated that a lot of it comes in and out. She stated that she has been diagnosed with “Trauma-induced Amnesia”. She said that sometimes her memories are very clear and sometimes they are fuzzy. “When I am in that state, nothing felt real”, she said.

[36] “It made me feel dizzy. It made me feel sick. I had a knot in my stomach. I don't trust my memory because things all jumble up.”, she added. Defence counsel put it to her that she did not have a good memory of what happened. “I remember him touching me and kissing me very clearly but everything else – I don’t have a descriptive word for how it felt -- kind of unreal.” Defence counsel asked JB how she was feeling now about it, and she stated, “Now I am angry about it. It was a very intense thing to happen to me.”

[37] Defence counsel asked JB about her trauma-induced amnesia. She stated that she was diagnosed with this when she was in a “psych ward” when she was in her early 20s. “Sometimes I'll get a really clear memory and I'll forget about it. Then they will pop up. A lot of it has to do around trauma from abuse when I was a child. If everyday life is stressful, it can trigger it. Talking about it and having to relive it shakes my brain up a bit. I was a little more shaken up that day with the officer than today.” She later (on Day 2) added, “Sometimes I will lose memories for years. It chops it up. My brain is trying to make me forget. A lot of time an emotional response comes through -- I get emotional and my brain blocks it out.” For example, she told me that her son’s birthday was yesterday. “So I remember it clearly. Next week I won't and it will be chopped up. Then it will come back.”

[38] She recalled that when she arrived at the radio station, she was asked to go through and list everything that was in the prize bin. She agreed it was an ordinary day. She thought that only she and KL were in the radio station but allowed that there may have been someone in the booth. She could not recall what day of the week it was. Although she agreed that people could come and go on a random basis, she stated, “It was quiet.”

[39] When confronted with her police statement where she told the police that it was the same day that she made pancakes, she said that she did not remember if that was in fact the case. She stated that although she was trying to be accurate with the Police, “I was shaky and anxiety ridden. It was intimidating. He was seen as a staple and well liked person in the community. Trying to get things out is nerve-wracking.”

[40] In cross-examination, JB stated that she was “concerned” about KL because he was sitting at the desk, writing and mumbling to himself. He would hit the desk with both of his fists and say the F word. “Anger and yelling makes me nervous so I was trying to diffuse the situation.”, she said. She asked, “Are you ok? Do you need to talk.” That’s when he kissed her neck. She reiterated that she sat there frozen and she didn’t know what to do or say or how to react. “I felt kinda sick.”, she said. She recalled that he pulled back and said, “I shouldn't be doing this you're just so soft and sweet”.

[41] Defence counsel suggested to JB that she kissed KL rather than he kissed her. “No” she replied.

[42] Defence counsel asked JB if she kept hanging out at radio station after this happened. JB stated that she stayed away for a while but “it was a place I really missed so I ended up going back. I missed some of my shows and I got reprimanded for it.”

The Kissing Outside At Div’s Residence

[43] “If that was all that there was”, she said, “it was almost excusable. But it carried on.”

[44] The next significant interaction took place a couple of months later when she was babysitting a friend’s (DH) son. KL was a mutual friend of DH. She indicated that DH was a pretty active community member who hung out at the radio station a lot. DH would let KL stay at his house sometimes. DH was known as “Div”. She recalled that Div lived “on the main drag, across from the post office” in Killaloe.

[45] In cross-examination she stated that she frequently babysat for Div, often as many as three nights a week. Div was just one of the people she babysat for. She stated that she did a lot of babysitting for as many as five families. She agreed that in her statement, she referred to Div as her friend. Although she denied hanging out at Div’s at times when she was not babysitting, she stated that Div’s place “felt like a second home.” She stated that he would make food and play music and there were a lot times when she stayed extra time after her babysitting was finished.

[46] She stated that KL came and he was hanging around. A lot of the time nothing would happen.

[47] On one occasion, they were sitting outside. He gave her cigarettes and they were sitting on an old sectional. This was the only place to sit. She recalled a that woman, who people knew as RP, walked by. She waved and stopped and said hello but then kept going. She said that KL was kissing her and RP would have seen it. She recalled that she and RP talked about it years later.

[48] She recalled that the old sectional was at the front of the building where Div and his son lived.

[49] When the Crown asked JB if she wanted KL to kiss her, she stated, “It was something that happened. It was not something I was expecting.” She recalled that she was “facing a lot of aggression” at her home and that when she encountered anything that seemed like a threat, she would stop and freeze and not do anything about it. This is what she did in this case.

[50] Defence counsel asked JB when the incident took place. “I want to say fall. There were leaves blowing past.”, she stated. Defence counsel then put it to JB that when she gave her statement to the Police she said that it was spring, not fall. She explained this inconsistency by stating that she was bad with dates.” Defence counsel stated, “We now know that this is fall?” JB replied, “Spring and fall are interchangeable. It would make sense if it was spring because sometimes there are leaves too. She stated that the questions make her dizzy.

[51] Defence counsel put it to JB that she told the Police that KL was staying at Div’s because there was a fire and the radio station burned down. She stated that she told the officer that “I think” that’s what happened. She stated, “I was trying to piece it together in my own head. I was trying to answer questions to the best of my ability. I was not using it as an anchoring point. I just know it burned down and I gave that as a reason as to why he might be there.”

[52] She agreed that she did not know when Div was going to come home. She stated that he was usually gone for a couple of hours. She could not recall if it was light out or dark out. “My brain says dark but uh early, maybe evening”, she stated.

[53] Defence counsel suggested that when the incident happened, she was “hanging out” at Div’s house. JB stated that she was babysitting Div’s son and she got him to sleep. KL showed up after Div had left. KL was doing “God knows what” in the house.

[54] At this point, Defence counsel interrupted JB and asked, “Were you not sitting in the kitchen hanging out laughing and telling jokes?” JB agreed that that took place, but that was before Div left. She added that KL left when Div left. He came back before Div. She was not sure when he came back.

[55] Defence counsel put it to JB that she smoked a joint with KL and Div before Div left and that is what she told Police. “I am trying to piece it together for context to answer to the best of my ability. It was right before Div left that we were hanging out in the kitchen. We had smoked a joint. It was normal at that point. Div was leaving. He was about to leave and were hanging out in the kitchen. Defence counsel asked JB if KL asked her to smoke a cigarette outside before or after Div left? She stated that Div was leaving and left through the back. She and KL were out front.

[56] Defence counsel suggested to JB that this she thought it was normal and she was comfortable even though the kissing incident at the radio station had taken place. JB stated, “I didn't have experience. He had a very casual air and in my head it felt like things were back to normal. I didn't know what any of it was. I wasn't talking about it with my parents. I wasn’t talking about any of it with anybody. I regained trust and I still looked up to him as a mentor. I still held high regard for him for a long time because he was somebody I trusted.”

[57] JB agreed that the kissing on the couch incident took place right across from the Post Office. She also agreed that when this took place Quinn’s Tavern was still open and there were always people around. She agreed that there was a patio for the tavern close to where the sectional was and that people frequently went there to smoke or drink.

[58] She stated that she could not remember what happened leading up to the kiss on the couch. She recalled that she sat on the couch. KL said he wanted to sit on couch because there was nowhere else to sit. She stated that KL asked her to put her legs up on his lap. She said, “no”. I remember that he was grabbing at me and making out with me. Defence counsel asked, “This all happened on the main drag where people were constantly walking past?” JB stated, “Yeah but it was pretty quiet that night and the only person who walked by was RP.” JB agreed that RP saw what happened.

The Sexual Intercourse

[59] After the kissing outside, she went inside to check on the boy that she was babysitting. She stated that she remembered being “really dizzy and confused”. She said that KL took her to his room, where he undressed her from the waist down, laid her down and had sex with her. She recalled that after it was over, she got up and put her pants back on. “I didn’t know what had happened or what to do about it.”, she said. “I remember I didn’t feel like I was there anymore. I had never been sexually active at that point.” She recalled that she sat in the kitchen. She could not recall where KL went. She said that when Div came home, she left and she went home by herself.

[60] When asked to describe the sex, she stated that KL penetrated her vagina with his penis. She stated that she did not want him to do that.

[61] She recalled that they both were probably under the influence of marihuana.

[62] She could not recall what she was wearing. She remembered that it was cold.

[63] JB disagreed with defence counsel’s suggestion that KL invited her back inside. “I was already there. We just went in the house.”

[64] JB agreed that once inside, KL invited her to come into his room to show her a painting. Defence counsel asked, “You were comfortable going alone into a room with him?” JB replied, “I was a very trusting child. Children are easily manipulated. I wasn't like, ‘Hey do you want to go take my virginity.’”

[65] Defence counsel continued, asking, “You egged it on and attempted to seduce KL?”. JB replied, “That is absolutely absurd. No twelve-year-old is trying to go after a 35 year old man to try to get them to go into bed with them.”

[66] Defence counsel continued with this line of questioning on Day 2 of JB’s cross-examination. JB agreed that she maintained that KL forced himself on her without her consent. “You decided to go into a private room alone?”, defence counsel asked. I was inexperienced. I was under the influence of marihuana. I thought he wanted me to check out the painting. I was a child.”, JB replied.

[67] Defence counsel continued, “You knew enough about how you felt to intentionally avoid KL about the radio station incident but you tell us now at Div’s residence it didn't occur to you to avoid going with KL?” JB stated, “I was trusting kid and I was under the influence. My brain didn't put it together. I don't know if you have children Mr. Smith but they are very trusting. I have four. I could tell them anything and they would probably do it. I believe I was the same way as a child. I was very trusting of anybody. The thought did not cross my mind that was his intent. I didn’t know that's what people were capable of.”

[68] Defence counsel continued, “You agreed to be in KL’s residence knowing that there was a strong possibility that he would be there.” JB stated, “I was a kid. I liked babysitting. I liked making money. I push anything aside. Any worries or feelings I tried not to think about because I had a job to do. I really enjoyed working for him [Div]. I liked babysitting for him. He would pay me well. A lot of the time he made me meals.”

JB’s Report

[69] The Crown asked JB if she had any other significant interactions with KL after that. She stated that she met him at community events. She stated that the town would often have “pot-luck” Christmas dinners on Christmas Eve. The night before these dinners, they would have “peeling parties” (potatoes). She recalled that she and her mom would go. If her mom did not want to go, she would always go. She stated that KL was always there and he would come up to her and say “really creepy stuff which would always make me really uncomfortable.”

[70] She specifically recalled that at one of the community dinners he came up to her and whispered in her ear that he liked the way her ass looked. He also told her, “I hope you know you are the most gentle lover I have ever had.”

[71] In cross-examination, JB agreed that there were a lot of people around when he did this and suggested that what was said could be overheard. “Not with the way he did it.”, JB replied.

[72] Defence counsel asked JB, “Did you ever tell him to leave you alone or go away?” JB stated that she might have once or twice, but “the majority of the time I tried to ignore it. My resolution was to ignore it.”

[73] When JB turned sixteen, she moved away. She returned to Killaloe and started to get involved in the community. She stated that in 2021, she moved to Barry’s Bay. She recalled that she saw KL. She said that she tried to ignore him. She said that she thought he would “get the hint” that she did not want to talk to him.

[74] She recalled that she was going for a bike ride and she was starting to bike around more often. One day, she heard someone behind her say, “Nice bike.” She turned around and saw KL following her on his bike. Later, when she got home, she saw KL’s car in front of her house. She described the location of her home in Barry’s Bay as “a fishbowl corner”, which I took to mean that lots of people drove by and everyone could see the front of her home. In any event, she stated that when she saw him in his car, her daughters were outside playing. She saw him speed up and go.

[75] In cross-examination, JB agreed that KL lived a couple of doors down from where she was living and that’s when she saw him ride past her house on a bicycle. She also repeated what she said in-chief about KL following her and complementing her on her bike.

[76] She gave a statement to the Police on April 28, 2021 and reported the allegations. She stated that she didn’t want him “being around” and “something snapped.” She did not want him to try to talk to her and she did not want him coming around because she had her children. “I wanted it to be dealt with so that I could keep him away from me for the rest of my life,” she said.

[77] Later in cross-examination, she stated, “I really thought that for years I could let it slide. As long as we stayed away from each other it was not something that I had to think about again.”

[78] She reported that she now lives in the Windsor area. “Everything kind of inside me said go as far away as possible”, she said. “I don’t want to have to deal with that anymore”. “My partner’s family is in that area.”, she added. “That all swayed me.”

[79] In cross-examination, JB stated that she had a rough homelife and she wanted to be away from her father as much as possible. That is one reason that she hung around the radio station. She agreed that she would avoid going home as much as she could. She stated that she was expected to be home for meals and she was allowed to be out until it got dark.

[80] Despite the fact that she told the Police in her statement that “she would be gone for days”, she stated that she had to be home every night. She stated that she would come home after her father was in bed and she would try to wake up and be gone before he woke up. “I should have clarified that”, when she spoke to the Police, she said.

[81] At another point her statement, she told the Police, “Sometimes I would basically live there.” When confronted with this JB stated that that there were times when she was babysitting when she would not come home and she would end up sleeping over at Div’s. “I liked eating there because they were vegetarians and they made good food.”

[82] With respect to her smoking habit, JB agreed that her sister taught her to smoke. She started to give JB cigarettes when JB was ten years old. She stated that “it was like I was a parlour trick for her friends.” She stated that her sister was taking them from her parents. She would in turn take the cigarettes from her sister. This way her sister could not tell on her.

[83] Defence counsel put it to JB that she was not “just a child”, that she had smoked with KL and that she worked at the radio station. She agreed that although her work at the radio station was volunteering, she saw it as work. “It was something that I did with purpose,” she said. “If you had seen me as a kid, I don’t know how you could mistake me as an adult” she said.

[84] Defence counsel put it to her that she specifically told KL that she was 15. “No”, she replied.

[85] At the end of JB’s cross-examination on the first day, there was a discussion of her age. She stated that when she was in Grade 7 she was 12. She agreed that on May 23, 2003, she would have turned 14. Defence counsel asked JB, “This happened in the fall of 2003?” She stated “I believe it was around then. I don’t know the exact dates of a lot of it.”

[86] When JB’s cross-examination resumed on Day 2, she asked to make a statement and advised that she did some thinking and she may be wrong with her dates. She explained that because of the year she was born, she always thinks she is a year older than she actually is. She stated that this would have happened in 2001 because that is when she was in Grade 7. “Exact dates befall me”, she stated.

[87] She agreed that this was not something she can be sure of.

[88] In re-examination, she stated that she was “maybe freshly 13” when the kissing incident at the radio station happened. She said that she was 13 when the kissing on the couch/sexual intercourse incidents took place. She said that she believes she was 13 because she was still living at home. She recalled that she moved to Columbus House in Pembroke when she was 14 or 15. She stated that this took place after she had a six-month stay at the mental health ward of the Children’s Hospital for Eastern Ontario.

Analysis

General Principles

[89] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

[90] In assessing the evidence in this case, I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that her evidence should be rejected.

[91] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she believes it be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed. A credible witness may give unreliable evidence. [1]

[92] In assessing JB’s account of what happened, I have considered the account’s internal consistency, it’s consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings.

[93] To assess reliability, I have considered JB’s circumstances, the quality of her recollection given the passage of time, whether her evidence has been influenced by other sources, her mental capability and limitations and her level of sophistication.

The Impact of Inconsistencies in JB’s Evidence

[94] Some inconsistencies are important; other less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern. [2]

[95] JB was 33 when she was testifying about an incident which took place when she was twelve or thirteen. A court may not automatically discount a child’s evidence; otherwise it will have fallen into error. [3] As Justice McLachlin (as she then was) further noted in R. v. W. (R.), 1992 SCC 56, “it may be wrong to apply adult tests of credibility to the evidence of children.” [4] She stated:

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [5] [Emphasis mine]

[96] There are some inconsistencies in JB’s evidence. With respect to the kiss incident on the radio station, JB told the Police that it was dark, but her evidence in court was that it was not dark. She explained this by stating that she felt very dark and went on to discuss her Trauma-induced Amnesia. She also stated that she did not explain this well to the investigator.

[97] She was also inconsistent with respect to her evidence about making pancakes. In court, her evidence was to the effect that she only made pancakes at the radio station on one occasion but she could not recall when. In her statement to the Police she told the investigator that she made pancakes the same day as the kissing incident.

[98] With respect to when the kissing incident on the couch in front of Div’s place took place, she was also inconsistent. In court, when she was asked when this took place, she stated “I want to say fall”. When it was put to her that she told the investigator it happened in the Spring, she stated that she could not remember. She said that she remembered that there were leaves blowing around and this could make it spring or fall. She stated that it was cold.

[99] With respect to the kissing on the couch incident/sexual intercourse incident, JB told the Police that KL was staying at Div’s place because the radio station burned down. In court, she testified that KL would sometimes stay at Div’s place. She attempted to explain this by indicating she told Police this to raise the possibility that the fire might be why KL was staying at Div’s place.

[100] JB told the Police that there were times when she basically lived at Div’s place. In court, she indicated that she had to be home every night. JB explained this inconsistency by stating that there were times when she would stay overnight at Div’s place. She also stated that she would often stay there after her babysitting assignment was completed to hang out, listen to music and eat. On a couple of occasions she mentioned how much she liked Div’s food.

[101] JB was also inconsistent with respect to when the incidents happened. At one point she testified that the incident happened in 2003, which would have made her 14 years of age. Later she testified that after thinking about it, that could not be right. She explained that by stating that she was bad at math and because she was born in 1989, she always gets her age wrong.

[102] In my view, most, if not all of these inconsistencies relate to peripheral matters. She could recall other significant details with respect to peripheral matters, including the layout of the radio station, the layout of Div’s home, the fact that on the day of the kissing incident at the radio station, she was asked to go through the prize bin, and the names of a lot of the adults that worked at the radio station. Her failure to be consistent and remember other peripheral matters does not meaningfully impact her credibility and reliability.

[103] She was also unshaken with respect to her accounts of each of the three incidents she described.

Late Disclosure Does Not Impact her Credibility

[104] I take nothing from JB’s failure to disclose any of these incidents until April of 2021. Late or incremental disclosure in sexual assault cases will not, standing alone, constitute a reason to diminish a complainant’s credibility. In R. v. D. (D.), 2000 SCC 43, Justice Major stated:

[T]here is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. [6]

The Failure to Demonstrate Avoidant Behaviour after the Incidents Does Not Impact JB’s Credibility and Reliability

[105] I also take nothing from the fact that despite the kissing incident, JB allowed herself to be alone with KL at Div’s house. JB is very clear that she thought that kissing incident was something of aberration (it was almost excusable, she said) and although she avoided the radio station for a while after it happened, she returned because she missed the station and she wanted to continue with her show. She also stated that she looked up to KL. She was young and inexperienced.

[106] Appellate courts have been extremely clear that to find that the complainant should demonstrate “avoidant behaviour” with respect to the accused on the basis of “common sense” is stereotypical and mythological reasoning. In R. v. A.R.D., 2017 ABCA 237, the Alberta Court of Appeal had this to say about this kind of reasoning:

First, there is a troubling circularity about the sought for avoidant behaviour, in that “avoidance” defines an interactional aspect of this particular interpersonal relationship which could be equally attributable to both the respondent and the complainant, or to neither of them. Its presence or absence signifies nothing in particular in relation to the credibility of the complainant about the alleged sexual assaults.

Second, it has long been recognized that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R. v. D. (D.), 2000 SCC 43 at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “ must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse” [emphasis in original]: R. v. D. (D.), 2000 SCC 43 at para 63.

The most serious problem with the trial judge’s comparison-based assessment of the complainant’s credibility stems from his impermissible reliance on a myth or stereotype (masquerading as logic and common sense) about how a sexual assault complainant, in general and in this case, is assumed or expected to behave post-sexual assault(s). Put plainly, the trial judge’s reliance on his own “logic and common-sense” about how humans react following sexual assault, is itself highly questionable as to relevance and reliability. But it becomes particularly dangerous when reliance on that “logic” overshadows any resort to or assessment of the actual evidence at trial. The trial judge found reasonable doubt because this particular complainant did not exhibit expected predictive, avoidant behaviour. In our view, it is neither logical nor a matter of common sense to expect a child complainant to behave in any particular manner.

Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility. [7]

Other Credibility Issues

[107] Defence counsel submitted that I should not believe JB because the assaults took place in very public places, there was no set schedule and anyone else could have discovered that what was taking place. This, said Defence counsel, defied logic. With respect to the radio station, Defence pointed to the fact that everyone knew where the key was or the combination to the door. With respect to what took place at Div’s residence, Defence counsel pointed to the fact that Div could have returned at anytime, and Div’s boy was sleeping right next door to where the intercourse took place. With respect to what happened outside on the couch, Killaloe was a bustling little town, there was a tavern next door. It happened in a very public place. This, said defence, was not consistent with a sexual assault taking place. Defence also suggested that JB’s allegation that KL spoke to her about sexual assaults at holiday parties was “brazen behaviour” that does not make any sense.

[108] I disagree. Brazen behaviour in public places happens in sexual assault cases all the time. The fact that KL knew that other people were coming and going from either the radio station or Div’s residence is immaterial and does not impact JB’s credibility with respect to the incidents she described. With respect to what he said to her at holiday parties, JB made it very clear that his discussions with her were intimate in the sense that he whispered in her ear and no one else could hear.

[109] Defence counsel argued that I should have a doubt based on JB’s difficulty pinning down how she was when the incidents took place. I find that the incidents took place when JB was in Grade 7 or Grade 8. She would have been twelve or thirteen years of age. She did not turn 14 until May 23, 2013. She should have entered Grade 9 in the fall of 2013. Although she was confused about specific years, her evidence was clear and unshaken that she was an elementary school student when the incidents took place. I therefore find that the Crown has proven beyond a reasonable doubt that the complained of conduct fell within the dates set out in the information. In the event that I am wrong in this finding, and JB was 14 years of age or older, than given my findings below, the accused would be liable for sexual assault.

Is the Defence of Mistaken Belief in the Age of the Complainant Available?

[110] Section 150.1(4) of the Criminal Code makes it clear that a mistaken belief in the age of the complainant will not absolve an accused for responsibility for sexually interfering or sexually assaulting her unless the accused took all reasonable steps to ascertain her age. In R. v. George, 2017 SCC 38, Justice Gascon of the Supreme Court of Canada described it this way:

It is a criminal offence to sexually touch a child who is 14 years of age or more but younger than 16 when you are five or more years their senior, even if you honestly believe they are older than 16, unless you have taken “all reasonable steps” to ascertain their age; nothing more is required (Benedet, at p. 167). [8]

[111] In R. v. Carbone, 2020 ONCA 394, Justice Doherty, writing for himself, Justice Watt and Justice Huscroft, assessed how trial judges are to approach the question of whether the accused took all reasonable steps:

The reshaping of the mens rea analysis effected by Morrison makes the job of the trial judge (or the jury) somewhat more complicated. I suggest the trial judge will proceed along the following lines:

Step 1: The trial judge will first determine whether there is an air of reality to the s. 150.1(4) defence, that is, is there a basis in the evidence to support the claim the accused believed the complainant was the required age and took all reasonable steps to determine the complainant's age.

Step 2: If the answer to step 1 is no, the s. 150.1(4) defence is not in play, and any claim the accused believed the complainant was the required age is removed from the evidentiary mix. If the answer at step1 is yes, the trial judge will decide whether the Crown has negated the defence by proving beyond a reasonable doubt, either that the accused did not believe the complainant was the required age, or did not take all reasonable steps to determine her age. If the Crown fails to negate the defence, the accused will be acquitted. If the Crown negates the defence, the judge will go on to step 3.

Step 3: The trial judge will consider, having determined there is no basis for the claim the accused believed the complainant was the required age, whether the Crown has proved the accused believed (or was wilfully blind) the complainant was underage, or was reckless as to her underage status. If the answer is yes, the trial judge will convict. If the answer is no, the trial judge will acquit. [9]

[112] In R. v. W.G., 2021 ONCA 578, Justice Watt, writing for himself, Associate Chief Justice Fairburn and Justice Huscroft summarized the import of Carbone:

….This requires the introduction of evidence that would permit the trier of fact to find that the accused believed the complainant was the required age and took all reasonable steps to determine the complainant’s age: Morrison , at paras. 119-120; R. v. Carbone, 2020 ONCA 394, at para. 129 . This is consistent with general principles: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 , at paras. 2 , 50-54.

Where an accused fails to meet the evidentiary burden under s. 150.1(4) , the defence available under that section fails in limine in accordance with general principle. However, where the evidentiary burden is met, the defence is in play and becomes available for the trier of fact to consider in accordance with its terms. Once the defence is in play, the burden settles upon the Crown to negate the defence for which the subsection provides. This too accords with general principle, except for those few defences where the legal burden also falls upon the accused.

Where the defence of s. 150.1(4) is in play, the Crown may negate it in either of two ways. The Crown may prove that the accused did not honestly believe that the complainant was at least 16 years old at the time of the alleged offence. Or the Crown may prove that, despite the accused’s claim that they honestly believed that the complainant was at least 16, the accused did not take all reasonable steps to ascertain the complainant’s age: Morrison , at para. 88; R. v. Carbone, 2020 ONCA 394, at para. 118 . See also R. v. Saliba, 2013 ONCA 661, 304 C.C.C. (3d) 133 , at paras. 26-28 ; R. v. Duran, 2013 ONCA 343, 306 O.A.C. 301 , at para. 51 .

The “all reasonable steps” analysis required under s. 150.1(4) is highly contextual and fact specific. As a general rule, the more reasonable an accused’s perception of the complainant’s age, the fewer steps required of the accused to satisfy the standard of diligence imposed: R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021 , at para. 9 .

Some steps are of no avail in the “all reasonable steps” analysis. The sexual activity itself cannot be summoned in support because the steps must precede the activity which forms the subject matter of the charge. Equally unavailing are steps taken after the alleged interference, although these steps may have purchase on an assessment of the credibility and reliability of a witness. The steps must precede the conduct in issue: R. v. George, 2017 SCC 38, at paras. 18-21 .

“Reasonable steps” are steps that a reasonable person would take, in the same circumstances known to the accused at the time, to ascertain the complainant’s age. The reasonable steps requirement includes both objective and subjective elements. The steps, viewed objectively, must be reasonable. And the reasonableness of those steps must be asserted in the circumstances known to the accused: Morrison , at para. 105.

“Reasonable steps” are steps that provide information reasonably capable of supporting an accused’s belief that the complainant is of legal age. In other words, the steps must be meaningful. Steps that solicit information that does not reasonably support a belief in legal age are not reasonable steps. Relevant considerations include not only the nature of the steps themselves, but also the information that those steps solicit. The steps need not always be active. However, where the early steps of an accused could reasonably support a belief that the other person is of legal age, but later events raise “red flags” that the other person may not be of legal age, additional steps may be required to meet the standard of s. 150.1(4) : Morrison , at paras. 106-109.

There is no magic number or exhaustive list of steps that an accused must take to satisfy the “all reasonable steps” requirement in s. 150.1(4) . A practical, common sense approach should prevail, informed by the overarching purpose of the provision – to protect vulnerable young people from sexual crimes by assigning responsibility for preventing adult/youth sexual activity on adults. And by an enhanced standard. Not simply “reasonable steps”, but “all reasonable steps to ascertain the age” of the complainant. [10]

[113] Following this rubric, the first question I must answer is whether an “air of reality” to the section 150.1(4) defence has been raised. JB was clear that the KL did not ask her age. She was clear that everyone at the station knew that she was in Grade 7. She was proud of being entrusted as a volunteer at the station and having her own show when she was so young and she frequently bragged about it. She also stated that photographic evidence, if filed, would make it clear that she was not 14.

[114] Her description of what KL said after the first kissing incident is also very telling: In essence, he admitted, “I should not be doing this”.

[115] Against this, we have a lot of evidence that JB was “mature for her age”, and tried to engage in conversations about books etc with the adults at the station in order to gain their confidence and trust and make them think that she was not just some kid with a lot of questions. She agreed that she would lie about reading specific books when in fact she hadn’t. With respect to the first kissing incident, the evidence is clear that the incident took place after JB expressed her concern for KL’s frustrations and invited him to talk about what was bothering him – a very “adult” thing to do.

[116] There was no photographic evidence filed with respect to JB’s appearance at the time that the incident took place.

[117] In my view, there is no air of reality to the section 150.1(4) defence. JB’s evidence, was uncontradicted that she was in Grade 7. Although the evidence suggests that she was, as the saying goes, “an old soul”, or mature for her age, the use of this metaphor implies that there is a realization that she is, in fact, younger than she mentally lets on.

[118] In the event that I am incorrect about this, I find, following the second branch of the Carbone/WG inquiry that the Crown has negated the defence. I agree with the Crown that there is no evidence that KL took any steps, let alone “all reasonable steps”, as required by the section to verify JB’s age. In the face of clear evidence that JB was in Grade 7, it was incumbent upon KL to make diligent inquiries with respect to her age, even if she did appear to be an “old soul”. There is no evidence that KL had the subjective belief that the steps he took were reasonable and there was no evidence of any objectively reasonable steps. As in WG , either he knew that she was not of age, was willfully blind to the fact that she was not of age or was reckless that she was not of age.

[119] I therefore find that, JB being unable to legally consent to sexual activity with KL, that KL committed the offence of sexual interference.

Is the Offence of Sexual Assault Proven or Did the Complainant Consent to Sexual Touching?

[120] In order to find KL guilty of sexual assault, I must be satisfied beyond a reasonable doubt that:

a) KL intentionally applied force to CW. b) JB did not consent to the force that Beal applied. c) KL knew that JB did not consent to the force that he applied. d) The force that KL applied took place in circumstances of a sexual nature.

[121] Appellate courts have given trial judges the following instructions in assessing the presence or absence of consent:

a) If the sexual assault case involves a different interpretation of essentially the same events, trial judges should consider whether the complainant, in her mind, wanted the sexual touching to occur. Once she has asserted that she did not consent, the question is one of credibility. If the trial judge is satisfied beyond a reasonable doubt that she did not consent, the inquiry shifts to the accused’s state of mind [11] .

b) The accused may then establish that on the basis of her words and conduct, the complainant was consenting. [12]

c) The accused’s belief that the complainant was consenting cannot be reckless or willfully blind. [13]

d) Silence, passivity or ambiguous conduct is not consent. [14]

e) While it is open for a complainant to change her mind, the accused must make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there is a change of heart, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable. [15]

f) The complainant must agree to the specific sex act. Agreement to one form of penetration is not agreement to all forms of penetration. Agreement to sexual touching on one part of the body is not agreement to all sexual touching. [16] Consent must be specifically renewed and communicated for each sexual act. It is not possible to give “broad advance consent”. [17]

g) Section 273.1 of the Criminal Code requires that the accused must take reasonable steps, in circumstances known to him at the time, to ascertain that the complainant was consenting. The reasonable steps requirement rejects the outmoded idea that woman can be taken to be consenting unless they say “no”. There is no catalogue of steps that constitute “reasonable steps”. Silence, passivity or ambiguous conduct is not a reasonable step. The more invasive the sexual activity and/or the greater the risk posed to the health and safety of those involved, the greater care is necessary in ascertaining consent. Greater care is also necessary where the parties are unfamiliar with one another and there is the risk of miscommunication, misunderstanding and mistake. [18]

h) Not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required to establish consent. [19]

i) When assessing the credibility of the complainant the court must be careful to not rely on impermissible myths and stereotypes under the guise of common sense and logic [20] .

[122] If I am incorrect in finding that JB was unable to legally consent to sexual activity with KL, I find that he did not take any reasonable steps to ascertain her consent. The kiss in the radio station was sudden. There was no discussion with JB where he sought her consent to kiss her before he did. There is no evidence, of words or of conduct that would have given rise to the defence that this was a consensual encounter. There was no evidence that JB was the one who initiated the kiss. The evidence is that immediately after the kiss, KL withdrew and admitted that he should not have done that.

[123] With respect to the kissing on the couch at Div’s residence and the sexual intercourse upstairs, there is no evidence that there was any prior discussion about engaging in this activity. There was no prior conduct on JB’s part that supported the inference that she was consenting. Even if JB consented to the kissing, which I specifically find that she did not, that does not give rise to consent to sexual intercourse.

[124] I therefore find that the accused committed the offence of Sexual Assault. I will invite the Crown to consider whether it should stay the Sexual Assault or the Sexual Interference charges on the basis of R. v. Kienapple.

Released: February 15, 2023 Signed: Justice J.R. Richardson