CITATION: R. v. MacPherson, 2023 ONCJ 497
DATE: September 6, 2023
Information No. 21 – 292
ONTARIO COURT OF JUSTICE
(at Cayuga, Ontario)
B E T W E E N:
HIS MAJESTY THE KING
- and -
STUART MacPHERSON
Mr. F. McCracken for the Crown
Mr. J. Neuberger for Stuart MacPherson
Reasons for Judgment
An order has been made under s. 486.4 directing that any information that could identify the complainant, M.K.H., shall not be published in any document or broadcast or transmitted in any way.
NADEL, J.:
Disclosure
[1] On Sunday, April 25, 2021, Mrs. H. was talking to her 13-year-old daughter, M.K.H. M.K.H. was beginning to wear “crop tops” and Mrs. H. was concerned that her daughter’s choice of clothing was potentially sexually provocative and so she had some advice for M.K.H.
[2] She told M.K.H. that “bad things happen to kids and unfortunately, they say it’s someone you know or trust.” M.K.H. reacted visibly to that warning, so her mother crouched down in front of her and asked, “Did something happen, did someone do something?” M.K.H. teared up and said, “Stu.”
[3] In response to some questioning by her mother, M.K.H. disclosed that “Stu” had had her touch him on more than one occasion, but she did not give her mother many details of her complaint.
[4] After sleeping on her daughter’s disclosure, Mrs. H. contacted a sexual assault help-line. Because the H. family and “Stu” lived in different communities and because the allegations occurred in a third jurisdiction, it wasn’t until the following Wednesday that the appropriate police department commenced an investigation. That investigation resulted in this trial.
Introduction
[5] Stuart MacPherson was born on August 30, 1955. He has just turned 68.
[6] On May 2, 2021, he was charged, (under s. 173(2) of the Criminal Code), with exposing his genitals to M.K.H. and charged, (under s. 152), with inviting her to masturbate him.
[7] Mr. MacPherson met M.K.H. because both the MacPhersons and the H. family had trailers in the same trailer park[^1], (name removed), on the Grand River.
[8] The MacPhersons, (Stuart and his wife, Gail,) have a daughter named Mandy. Mandy and her husband became friends with M.K.H.’s parents. Mr. MacPherson’s granddaughter, Emma, also became friends with M.K.H.
[9] Mandy and her husband were around the same age as M.K.H.’s own parents so the two couples would socialize at the trailer park.
[10] When Emma came to the trailer park M.K.H. said that she would hang out with Emma from morning ‘til night and that Emma came up four or five times during the summer of 2016. M.K.H. also had a friend, S.S., who was up once or twice that summer with her parents. On those weekends M.K.H., spent her time with S.S. “for the most part”.
The Charge Period
[11] When she was interviewed by O.P.P. Officer Leigh Lewis, (Lewis), M.K.H. wasn’t certain about how old she was when the events that she alleged occurred. As a result, the Information charges a period spanning between January 1, 2016 and December 31, 2018.
[12] Before testifying M.K.H. found some photos that she said were taken on a day when one of the events that she alleges occurred. The photos depict M.K.H., her sister, Sd.H., (who is two years older than M.K.H.), and a boy named E. on jet-skis.
[13] M.K.H. said that E. came to the park and used a jet-ski on only one occasion so that she was able to identify the summer when those photos were taken as the summer when the incidents happened. Counsel agreed that those two photographs, filed as exhibits, were taken during the primary school summer vacation of 2016.[^2]
[14] Since M.K.H. was born on […], 2008, her allegation is that the events occurred during the summer when she was seven and turned eight.
The Allegations
[15] M.K.H. alleges that Mr. MacPherson repeatedly brought her into the bedroom of his trailer and had her masturbate him during the summer of 2016. He would drop his pants and underwear to his ankles, have her apply lotion to her hands and then have her rub his penis. While he would become erect, he never ejaculated.
The Defence
[16] Mr. MacPherson testified that M.K.H.’s allegations were untrue; that the events that she described never happened; that he “was not a pervert or child molester.”
[17] Moreover, the defence contends that for a variety of reasons there was no plausible opportunity for the incidents to have occurred as alleged by M.K.H. Those reasons include:
- the regular presence of Mr. MacPherson’s wife at their trailer;
- the regular and close presence of neighbours and neighbouring trailers;
- the regular presence of park neighbours and friends visiting the social hub that was the MacPherson trailer;
- that as a drop-in hub there was never assured privacy at the MacPherson trailer;
- the fact that Mr. MacPherson was notoriously well-known at the trailer park; and,
- Mr. MacPherson’s commitment to social activities both at and away from his trailer.
[18] The defence position is that the cumulative effect of all of these factors make M.K.H.’s allegations implausible.
[19] Finally, in addition to all of that, the evidence of M.K.H. was so internally inconsistent on the issues of both the opportunity for and the frequency of her allegations that her evidence is incapable of supporting proof to the exclusion of any reasonable doubt.
The Complainant’s Evidence
[20] M.K.H.’s evidence was comprised of her police interview, which was tendered via s. 715.1, together with some supplementary questioning of her by the Crown, and her cross-examination. Her interrogations were controlled and structured by either a police officer or a lawyer at a time when the complainant was a young teenager. She did not provide a narrative of her allegations independent of these interrogations.
[21] Her police interrogation was conducted by Officer Leigh Lewis of the Haldimand detachment of the O.P.P. After attempting to develop some rapport with M.K.H., Lewis’ questioning of M.K.H. runs for about 55 pages of transcript.[^3]
[22] During the course of this questioning Officer Lewis returned to ask the same or similar questions on several occasions. Likewise, Mr. Neuberger, counsel to Mr. MacPherson, also returned to the same or similar questions on occasion. As a result, there is both repetition and some inconsistency in M.K.H.’s answers. While I intend to relate the substance of her evidence, I have reorganized it, in order to do so.
M.K.H.’s Initial Disclosure
[23] M.K.H.’s disclosure occurred in April of 2021. She was turning 13 that summer and liked to wear “crop tops”. According to M.K.H., her mother was warning her to be careful about what she was wearing, especially when she was going out because “things could always happen”. Her mother warned her to be careful “with stuff like that” and her mother mentioned “how the people that you trust, like they couldn’t do anything about it, like you couldn’t expect it or like your friends or whatever like that and that’s what made me told – tell her.”
[24] M.K.H.’s mother explained how after her daughter spoke to her on April 25, 2021, she brought M.K.H. into a police station where she was interviewed on April 29, 2021 by Lewis.
Timeframe
[25] M.K.H. told Lewis that she thought the events happened when she was eight and turning nine which would have been in 2017. However, as noted earlier, her trial evidence was that the events occurred during the summer of 2016, when she was seven and turning eight. M.K.H. said that “it didn’t happen after that summer. I don’t believe it happened ever again.”
M.K.H.’s Descriptions
[26] M.K.H. said that all of the events that she described happened in the bedroom of Mr. MacPherson’s “old” trailer.[^4] When she was interviewed, M.K.H. said that the MacPhersons had replaced their old trailer with a new one. It is common ground that the MacPhersons replaced their old trailer with a new one a number of summers after the summer of 2016.
[27] M.K.H. described the trailer’s bedroom as being a really crammed room in which the bed took up most of the space. The bedroom was equipped with little bedside tables, and it had some storage room under the bed. There was a table in one corner of the room that had a little TV on it along with some pictures of Mr. MacPherson’s family. The cream that he had her use was on that table. The bed in the room had four main pillows and a few decorative ones, too.
[28] M.K.H. described the bedroom as having two or three windows that were equipped with horizontal blinds, the louvers of which were open when she was touching Mr. MacPherson. She said that he did not close the blinds when she was in his bedroom.
[29] She said that she would precede Mr. MacPherson into the bedroom and sit on the bed. He would drop his pants and underwear but would leave them around his ankles and not step out of them. He wore underwear that was not the boxer style of briefs.
[30] Other than the first time when Mr. MacPherson put the lotion on her hands, and the one time when he stroked himself, the incidents always happened in the same way.
Daytime Only
[31] M.K.H. could not remember what time it was when any of these events occurred, but she said that they all occurred during daylight hours and never at night. She would wind up at the MacPherson trailer having been driven there by Mr. MacPherson on his golf cart or by having walked over to it. She said that her parents kept her at their trailer at night because a lot of drinking went on at the trailer park.
What Mr. MacPherson Said to Her
[32] Officer Lewis asked M.K.H., more than once, what Mr. MacPherson said to her the first time that he asked her to touch him. Similarly, she asked M.K.H. more than once to describe the first time that Mr. MacPherson asked her to touch his penis. M.K.H. was unable to remember how he put his request to her. She simply said that after the first time “he would ask me to do it, he would just ask – he would tell me to come in and I would.”
The Golf Cart
[33] Mr. MacPherson, like others at the trailer park, had a golf cart that he used to get around. He would commonly give rides to people, including M.K.H. and her older sister, Sd.H. She referred to the golf cart on several occasions during her interview with Lewis saying:
- “He would take me on his golf cart, usually, and then he would bring me over there. … I’d want a ride to somewhere or whatever or he’ll see me walking and he’ll ask me if I wanted a ride. So he – and then he would ask me if I can do it quickly for him.”
- “He would ask me on the golf cart sometimes, but then other times he would ask me like if I’m just inside the trailer for some, like reason just talking to him or whatever, then he would ask me if I can do it inside the trailer.”
- “He would ask me usually on the golf cart while we were on the way to his place… or sometime while we were inside the trailer.”
How M.K.H. Knew What to Do
[34] M.K.H. said that the first time this happened Mr. MacPherson gave her the cream and showed her where to put it on himself. She said that he told her to rub it on for him and he pointed to his penis. She said that she rubbed her creamed hands on his “boy’s part”.
[35] While M.K.H. could not recall the specific words used by Mr. MacPherson, she said that Mr. MacPherson would tell her to come with him into his bedroom and that she knew what to do because “He would tell me.” … “[H]e would just tell me to put cream on it in – in the area he showed me where to put it.”
[36] M.K.H. also said that he would usually get her to use both of her hands to rub the cream onto his penis.
[37] M.K.H. recognized the cream that she used on Mr. MacPherson as being Aveeno, a brand that her mother used. She recalled that the first time she applied cream to his penis she told him, “Oh, that’s the same cream as my mom uses sometimes.” M.K.H. was able to describe the Aveeno container as having a pump applicator which she knew how to operate because she had seen her mother do so. She was able to generally describe the colour of the container and the colour of the cream but while she purported to recognize the smell of the cream, she did not have the vocabulary to describe its smell, saying, “I don’t know what words I can use to describe it.”
[38] She said, “Um, I can’t remember how it came upon, but he just – he would ask me to do it and at the time I was so young I didn’t know what it was, and I didn’t know it was bad or anything like that and – so from then on, I – like, he would just ask me to do it. Like maybe like once a weekend or something like that.”
[39] I have italicized and emphasized this answer because it was offered spontaneously by M.K.H. and was the first time that she spoke about the frequency of these events to Officer Lewis.
[40] In describing how these encounters occurred M.K.H. said, “Um, I would – he would take – they had a small bedroom, and he would just get me to go in there and then he would, um just tell me to put cream on him.” M.K.H. said, among other things: “He would just tell me to come with him.” “… He would just ask – he would tell me to come in and I would.” She also said that she would precede him into the room and sit on the bed.
[41] Mr. MacPherson would drop his pants and underwear to his ankles but would not step out of them. She described the style of his underwear. When Mr. MacPherson dropped his pants to his ankles M.K.H. could also see his “balls” (sic). She said that she would have been able to see his “butt” too if he had turned around, but he never did.
[42] While Mr. MacPherson instructed her to apply the cream on him M.K.H. could not remember the exact words that he used to get her to do so other than saying that he would tell her to put the cream on him. She would follow his instructions by squirting the cream onto her hands and then rubbing his penis with both of her hands because he told her to use both of her hands. Afterwards he would pull up his pants and he would either take her back on his golf cart or she would walk back by herself.
Tumescence
[43] M.K.H. said that what she did to Mr. MacPherson “would make him get hard”. At the conclusion of these episodes, he was sometimes still erect and sometimes not.
Ejaculation
[44] M.K.H. apparently was aware of the meaning of ejaculation. Lewis asked her whether, other than the cream she used when touching Mr. MacPherson, there “was there any kind of – was there any other kind of liquid?” M.K.H. replied, “No, I know what you’re talking about” and she then went on to say: “Um, I remember one time – he said he had to do whatever quickly and I ask him why and he described it what it was, but like he didn’t tell me like wh-, that it was actually (indiscernible) or anything like that, he just told me what he was doing and – but o-, I – I never saw anything out of with that, though”.
Q: Okay. What he did he describe that he had to do?
A: Um, that he just told me that white stuff would come out and but I didn’t see (indiscernible). Nothing would ever come out.
[45] In response to a further inquiry from Lewis, M.K.H. confirmed that she never saw that, (i.e., any ejaculate), at any time. As noted, M.K.H. told Lewis that on one occasion Mr. MacPherson told her that he would have to “basically rub it how he would make me do it.” M.K.H. then saw him masturbate but “nothing ever came out.”
How The Incidents Ended
[46] M.K.H. said that each of these occurrences lasted for about the same amount of time which she estimated to be seven minutes. In direct examination she said that these episodes ended when she didn’t want to do it anymore, however, in cross-examination when asked how these incidents would end, M.K.H. said, “I don’t fully remember that.”
[47] She went on in her s. 715.1 statement to say that he would pull up his pants and say “okay, let’s go now” and that he often said “thank you” to her afterwards. Then they would get on the golf cart, and he would take me somewhere. “I would leave or whatever.”
Privacy
[48] M.K.H. said, “[n]obody else would be there except for me and him.” “His wife, Gail, would either be somewhere else in the trailer park or – ‘cause sometimes he’s up there alone and she’s not there ‘cause she’s home ‘cause she has to work, so she would either be home or she would be somewhere else in the trailer park”.
[49] Officer Lewis asked:
Q: Was there ever a chance that someone could possibly see this happen?
A: If – not that I – I didn’t see anybody, but like if somebody ever walks by his trailer or something and saw through a window or something like that, they could have, but I don’t think anybody ever did.
[50] As noted earlier, M.K.H. said that Mr. MacPherson did not close the blinds when they were in his bedroom.
[51] M.K.H. did not accept Mr. Neuberger’s suggestion that Gail MacPherson would have invariably been at the trailer as she was a “homebody”. While M.K.H. agreed that Gail was a homebody “for the most part”, she noted that Mrs. MacPherson’s daughter had a trailer in the park and Mrs. MacPherson would be over there “a decent amount during that summer.”
[52] Nonetheless, even though M.K.H. said that it was only the two of them in the trailer when these relations happened, M.K.H. freely agreed that people or neighbours were sometimes around or near the trailer and she agreed that there is not a lot of room between the trailers on either side of Mr. MacPherson’s trailer. However, she stated that the neighbour closest to the MacPherson’s trailer had their deck on the opposite side of their trailer so that they couldn’t see over to the MacPherson’s.
One Season Only
[53] In her s. 715.1 statement, M.K.H. said that these events only happened over one summer. While she accepted rides on his golf cart the following summer nothing ever happened again. She explained that the next summer “… I knew it wasn’t right and it was bad and – so I would make up an excuse ‘cause he would ask me to do it the year after that, and I would make up an excuse so then I wouldn’t have to, or I would just pretend like I didn’t hear him.”
[54] The trailer park “season” is longer than the traditional primary school summer vacation of July and August. It was common ground that the trailer park opened for the season in April or early May and closed down in October, after Canadian Thanksgiving.
[55] M.K.H. said that she went up to the trailer park from the time it opened, “which would have been near the end of school time” but she agreed with Mr. Neuberger’s suggestion that regardless of the time that the trailer park was open, she was “commonly up there … over the summer break, when she was not in school.[^5]
[56] There was no evidence of precisely when M.K.H.’s primary school year ended in June of 2016 or when her primary school began again in September of 2016. The primary school year in Ontario normally ends near the end of June and begins again at or just after Labour Day in September.
[57] There were 11 weekends in the primary summer school vacation in 2016 between Friday, June 24, 2016 and Monday, September 5, 2016. Two of those weekends, (Canada Day and Labour Day), were long weekends.
[58] However, M.K.H., talked about attending the trailer park for the season on more than one occasion and the trailer park season began near the end of April or early May.
[59] M.K.H.’s mother described “the season” as usually opening on the first weekend in May and would last until the weekend of Canadian Thanksgiving. Further, the H. family took their daughters to the trailer park every weekend in the 2016 season and sometimes a little extra if they could.
Frequency & Opportunity
[60] There are two aspects to the evidence respecting the opportunity for these events to have happened as alleged by M.K.H. The first aspect relates to Mr. MacPherson’s use of his time and the availability of privacy for the events to have occurred undetected as alleged by M.K.H.
[61] This first aspect is spoken to both in M.K.H.’s evidence as well as the evidence of Mr. MacPherson, his wife, Gail, and their neighbour, Peter Myers. I will review their evidence in due course. However, in this portion of these reasons, I will merely relate M.K.H.’s evidence on this topic.
[62] While Mr. Neuberger suggested to M.K.H. that Gail MacPherson was a homebody who was always at the trailer, M.K.H. did not agree. M.K.H. agreed that Gail MacPherson was not absent from the trailer park every single weekend of the summer of 2016 and M.K.H. conceded that “for the most part” Gail MacPherson was a “homebody.” Nonetheless, M.K.H.’s evidence was that:
“[n]obody else would be there except for me and him.” “His wife, Gail, would either be somewhere else in the trailer park or – ‘cause sometimes he’s up there alone and she’s not there ‘cause she’s home ‘cause she has to work, so she would either be home or she would be somewhere else in the trailer park”.
[63] M.K.H. also conceded that people, including trailer park neighbours of the MacPhersons were “around”, although she explained that while there may have been neighbours in the immediate vicinity, their deck did not have a sightline to the MacPherson trailer.
[64] M.K.H. denied greeting people before going into the trailer; but she agreed that she may have said “hi” to people as Mr. MacPherson drove by them on his golf cart as they were passing someone’s trailer. She acknowledged that both she and Mr. MacPherson were known by the residents of the trailer park and may have been observed by people at the trailer park.
[65] M.K.H. agreed that the trailer park was a busy place with people out and about doing all sorts of things from early in the morning until late in the evening. She agreed that Mr. MacPherson was a familiar sight driving his golf cart all over the trailer park, that he was familiar with everyone and that he was a friendly person who gave rides to lots of people.
[66] She agreed that the MacPherson trailer was surrounded by other trailers on the left of it and on the right and behind it, too. Further, she agreed with the suggestion that there “was not a lot of room between the trailers on either side of Stu’s.” In addition, she agreed that there was often lots of activity in front of the MacPherson trailer and that there was a parking lot in front of it and a bocce ball court close by as well.
[67] She agreed that Mr. MacPherson’s trailer was a social hub, that Mr. MacPherson had a lot of friends at the trailer park and that people often dropped in at all times of the day to sit down and talk.
Weekends
[68] The second aspect of “opportunity & frequency” concerns M.K.H.’s use of her time at the trailer park.
[69] As noted above at paragraph [38] M.K.H. said, “… he would just ask me to do it. Like maybe like once a weekend or something like that.”
[70] Subsequently, Officer Lewis asked M.K.H. to guess at how many times she thought that these incidents in Mr. MacPherson’s trailer happened; viz.:
Q: How many time do you think that happened in the room in the trailer, if you had to guess?
A: I would say basically that whole summer when I was there maybe – say if I was there – depends on how many days I was there. If it was just a weekend, usually once, maybe twice in one weekend, but if it was longer than that, it would’ve happened more that that.
[71] As noted earlier, Mr. MacPherson denies M.K.H.’s allegations. He said nothing inappropriate ever happened. As part of his defence to these allegations Mr. Neuberger had M.K.H. confirm that she alleged this abuse happened every weekend of the summer and sometimes on both Saturdays and Sundays.
[72] Like Officer Lewis, Mr. Neuberger returned to the same area of questioning more than once during his cross-examination of M.K.H.
Q: … your evidence is that throughout the summer of 2016, every single weekend this type of abuse happened, is that correct?
A: Yes.
Q: And that every single weekend, it happened more than once, correct?
A: Once or twice, it wouldn’t happen more than that.
Q: …you did say that it would be once and possibly twice on the weekend, is that correct?
A: Yes.
Q: But every single weekend of the summer, correct?
A: Yes.
At another point she said:
Q: Once or twice per weekend, is that correct?
A: Yes.
Q: Every weekend of the summer, is that correct?
A: Yes.
Q: And so we can agree that your recollection is that this happened at least more than once on a weekend in that summer? (emphasis added)
A: Yes.[^6]
[73] Despite making the foregoing statements about the frequency of the encounters with Mr. MacPherson, M.K.H. also said that when Emma was at the trailer park she would spend the whole day with her, or with Emma and Sd.H., literally from morning ‘til night and often eating supper at her trailer or at the MacPherson trailer.
[74] M.K.H. also agreed that Emma came up to the trailer park for four or five weekends during the school summer vacation.
Q: … when Emma was up, you literally spent the entire day with her, from the time you woke up to the time that you went back to your trailer for dinner, isn’t that correct?
A: Yeah.
Q: … And when Emma was up, this would be a weekend where you’d spend both Saturday and Sunday with Emma, is that fair?
A: For the most part, yes.
Q: Okay. And so when she did come up, you’d spend Saturday from morning till evening with her, and the same on Sunday, morning to evening with her, correct?
A: Yes.
Q: And often on these summer weekends, you were also with your sister, Sd.H., very often during the day, correct?
A: Yes.
[75] In addition to Emma, M.K.H. had a friend named S.S. who also came up on one or two weekends that summer. When that happened, S.S. also monopolized M.K.H.’s time throughout the days that they were together at the trailer park, albeit only “for the most part” because S.S.’s parents were staying at the H. family trailer, too.
[76] After obtaining these ostensibly contradictory answers Mr. Neuberger attempted to have M.K.H. concede that her complaint about Mr. MacPherson was riven by these inconsistences. That cross-examination proceeded as follows:
Q: …so S.S. came up on one or two weekends, is that correct?
A: Yes.
Q: And on those weekends, would it be fair to say from morning until dinnertime, you’d spend the entire day with her, isn’t that fair?
A: For the most part, yes.
Q: Is it true that you spent the entire day with her from the morning to when you woke up (sic) to dinner time and when you were going to bed at night?
A: No.
Q: Why? Why would you leave her alone?
A: Her family - her family was up there, as well, so sometimes I would just go for like a walk by myself. … …
Q: …And so on the occasions that S.S. was up there, this never happened, this abuse never happened, correct?
A: If I wasn’t with her, it would’ve happened that weekend. Like when – if I wasn’t with her at a certain time that day.
Q: You don’t really have a memory, you’re just guessing, right?
A: For the most part, yes.
Q: And when Emma was up for those four or five weekends for July and August of 2016, you spent with her, so on those occasions, the abuse never happened correct?
A: I know one for sure when she was up there it did happen. The other times, I’m not 100 percent.
Q: And – and the one time that you say that she was up there that it did happen, what were the circumstances? Do you have any recollection?
A: It would’ve been me and Stu only at the trailer, everybody else would have been at his daughter’s trailer.
Q: Everybody else. And – and do you remember what time of day that was?
A: I would say after lunch, before dinner.
Q: To be fair, you don’t have a specific recollection of that day?
A: Yes.
Q: So you’re agreeing with me, is that correct?
A: Yes.
Q: And your memories of the occasions when you say this happened are really quite spotty, isn’t that fair?
A: Certain times, I know – I know more than others, but I know it did happen majority of that summer.
Q: Again, when you say that it happened every single weekend once or twice, that’s not correct, right?
A: Can you repeat the question, please?
Q: When you had said to us, and it was in your interview, that this happened every single weekend of the summer, of 2016, that’s not correct?[^7]
A: No, I don’t think it’s fully correct.
Q: To be fair, when you were up …
The Court: Wait, Wait. “No, I don’t think that’s incorrect”? (sic) Do you agree with the suggestion or do you think that it did happen every weekend, despite the things you’ve told me?
A: This isn’t 100 percent answer, but I’m pretty sure it happened every weekend.
The Court: Yes. All right.
Mr. Neuberger: Okay. Well, I think I’ll just follow up on that.
The Court: Please, you’re welcome to.
Mr. Neuberger: Yeah. No, thank you very much.
Q: There were weekends in July and August of 2016 when you never went into Mr. MacPherson’s trailer, correct?
A: No.
Q: You’re saying on every single Saturday and Sunday of July and August of 2016, you always went into his trailer at least once during the weekend, Saturday and Sunday?
A: Yes.
Q: Okay. What I’m suggesting to you is that the times Emma were up, so you said one time it did happened, so on the other four times, three or four times that she came up to the trailer, those weekends, nothing happened with Mr. MacPherson, correct?
A: I don’t remember if anything happened those weekends or not.
Q: So what I was asking you was, when you said this happened every weekend of the summer, once or twice, that was not accurate, correct?
A: Yes.
Q: You don’t really have a recollection of this happening in July and August on any occasion of 2016, correct?
A: No.
The Court: That answer is not clear to me. No, you’re agreeing, or no, you don’t have a recollection? Try and ask the question again and give an answer that’s clear to me.
Mr. Neuberger: Q: You do not have a specific recollection on any given weekend in July and August of 2016 of this abuse happening, correct?
A: This is incorrect.
Q: You have – you have memories of it happening on every single weekend?
A: Not every single weekend, but I do remember it happening.
Q: Okay. Let’s go back to this for one more time. So for July and August, you would’ve been up for eight or nine weekends, correct?
A: Yes.
Q: And on at least four of those weekends, if not five, Emma was up there playing with you both Saturday and Sunday, correct?
A: Yes.
Q: And …
A: It would’ve been throughout the summer, so not just – the whole season, not just July and August. Like the whole season it was opened.
Q: Do you recall when you had said to me that these things had happened after school had ended?
A: I – sorry, I got confused on that part.
Q: Do you want to take a break for a moment? Am I exhausting you right now?
A: Could I take a break, please? …
Upon resuming:
Q: M.K.H., I just want to ask, so a little while ago in my cross-examination, I had asked you a question about when these things started to happen, and we had agreed that it started after school was out in the summer of 2016, do you remember that?
A: Yes.
Q: And you had agreed with me that then it was – we were talking about July and August of 2016, correct?
A: Yes.
Q: Okay. Are you now saying you remember it differently?
A: No.
M.K.H.’s Main Concern
[77] Officer Lewis asked M.K.H. if she had any thoughts when these events were happening. M.K.H. replied:
“My main concern – this is the main reason why I never told anybody – I was afraid that people were gonna get mad at me or judge me ‘cause I – at the time, like, I didn’t know it was bad or wrong, but then at the same like it – like afterward it was more s-, it felt more – so wrong and then I – like that – like I was afraid to tell my parents ‘cause I feel like they would get mad at me.”
[78] Office Lewis asked M.K.H. if she ever felt afraid of Mr. MacPherson at all. M.K.H. said:
“No, he wasn’t a s – he’s not a scary guy. It’s just my main concern, like I was always afraid that he was gonna tell someone but I didn’t know about that. My mom told me like when I told her that, he would ne-, never have told anybody. That was my main concern, I was also afraid of that ‘cause I found it embarrassing and I – like I said, I thought my parents would get mad at me.”
Other Inquiries by Officer Lewis
[79] Other than asking M.K.H. to rub cream on his back or shoulders on an occasion, M.K.H. said that Mr. MacPherson:
- never asked her to touch him anywhere else, (other than his penis);
- never asked her to do anything with her body to his penis other than what she described;
- never asked her to take her clothes off;
- never kissed her; and,
- never touched her.
M.K.H.’s Mother’s Evidence
[80] The H. family, (S.H., her husband, M.H., and their two daughters, Sd.H., and M.K.H.), bought and set up their trailer in October, at the end of the 2015 season. They used it for the full 2016 season. S.H.’s mother had had a trailer at that park for decades. The MacPherson’s trailer was nearby S.H.’s mother’s trailer, and the families became acquainted and friendly. S.H. became good friends with the MacPherson’s daughter Mandy and her family, who eventually also bought a trailer at the park.
[81] The H. family trailer was situated about a five-minute walk away from the MacPherson trailer. Mr. MacPherson was at the trailer park every weekend and often drove around in his golf cart. He would visit at the H.’s trailer regularly and the H. family would reciprocate.
[82] M.K.H.’s mother saw Mr. MacPherson’s wife, Gail, every weekend. She would visit with Gail most mornings to have a smoke and “gab”. She said that Gail “stayed at her own trailer most times. She pretty much stayed neutral to her own trailer when she was at the park”, although Gail had a sister at the park and Gail would go over to visit with her sister.
[83] Both the H. spouses and the MacPherson spouses came and went to the park separately with M.K.H.’s mother and Mr. MacPherson usually being there ahead of their spouses.
[84] M.K.H.’s mother would liaise with Gail MacPherson about when the MacPherson’s granddaughter, Emma, would be coming to the park. She estimated that Emma was at the trailer park “possibly four or five weekends” in the summer of 2016. Sd.H. was the eldest, then Emma and then M.K.H. Each was one year apart in age.
The Evidence of Stuart MacPherson: In-Chief
[85] Mr. MacPherson denied doing any of the things that M.K.H. alleged. He denied asking M.K.H. to do anything inappropriate to him. He was adamant that he was not “a child molester or a pervert” and that he “did nothing to these girls. [He] treated them like they were his granddaughter. [He] did nothing.” While he engaged in social activities with M.K.H. and Sd.H., and his granddaughter, those activities were benign: giving them golf cart rides, taking them out on his jet-ski or taking them on outings to the Dollar Store or to McDonald’s.
[86] When asked to estimate how many times Emma came to the trailer park each summer in 2016 and 2017 Mr. MacPherson said that she came up 15 times. When asked if that number was for both summers he answered, “Ah, maybe 20 times for both”, and ultimately testified that Emma came up every second or third weekend.
[87] As a transport truck driver running long-haul routes within Ontario, he regularly worked 12 to 14 hour days, although he tried to get off a little earlier on Fridays during the summer.
[88] Mr. MacPherson described the very busy and very social life that he enjoyed at the trailer park. He detailed the activities he engaged in and the people he socialized with: “Socially, it was fun. We knew almost everyone, and they knew me.” He described a life that could fairly be described as gregarious and helpful to all the residents of the trailer park, including the H. family.
[89] In addition to the many activities and events that he engaged in with his friends and neighbours at the park, Mr. MacPherson spent time with his wife.
[90] Mr. MacPherson said his wife was somebody who “pretty much stayed to the trailer,” and their trailer was a social hub with people, including her sister, dropping by at almost any time without pre-arrangement.
[91] The trailer that he owned in 2016 is pictured in Exhibit 3. It had a porch that was three steps up from the ground. Once on the porch every room inside was on the same level. There was a television, couch, and chairs immediately off the porch. To the right of that room was the trailer proper, which had a kitchen, small eating area and bathroom with a bedroom at the back of the trailer.
[92] Mr. MacPherson’s description of his bedroom was consistent with what M.K.H. described. It was at the back of the structure facing onto what was called Bruce Street. It had three windows the blinds of which were open in the sense of being horizontal. It had a queen-sized bed, with a table and a TV on it. When asked by the Crown if there was Aveeno cream in the trailer, his response was, “I don’t know, my wife has that stuff.”
[93] In addition to describing the front of his trailer as being a people-busy place Mr. MacPherson also said that it was typical for people to be on Bruce Street.
[94] As noted above at paragraph [88], Mr. Neuberger had Mr. MacPherson detail the activities he engaged in and the people he engaged with at the trailer park. As for his involvement and relationship with M.K.H. he said, inter alia:
Q: When you took M.K.H. to the waterfront did you ever take her alone?
A: Sure I did.
Q: And did she ever come back to your trailer?
A: I’m sure she did that too.
Q: Did you ever bring her back yourself?
A: Yes.
Q: Why?
A: Just passing by to get a beer or something. She might want a water or a Freezie. I always had something in the freezer.
Q: And when you stop who was there?
A: Usually my wife on weekends, always.
[95] He said that his wife also engaged in activities with M.K.H. and her sister and with Emma, when she was there. The girls loved Kraft Dinner which his wife made for them; and, among other activities, she assisted them in doing arts and crafts using trinkets that they had purchased at the Dollar Store.
[96] When he was asked what he thought of the two sisters he said that they were “great kids – very smart”.
[97] Mr. Neuberger concluded his examination as follows:
Q: … How has being charged with these offences impacted you?
A: Devastated me. I’m not a pervert. I’m not a child molester. I didn’t do this. I don’t know where it came from.
Q: At any time throughout, let’s even say 2015, 2016, 2017 did you engage in anything of a sexual nature with M.K.H.?
A: No.
The Evidence of Stuart MacPherson: In Cross-Examination
[98] Mr. McCracken began his cross-examination of Mr. MacPherson by eliciting the fact that on October 31, 2017 at Milton, Ontario, he was convicted of theft over $5,000.00 and sentenced to a one-year conditional sentence and ordered to pay restitution of $52,696.00, as well as being placed on probation for two years.[^8]
[99] An aerial Google photograph of the trailer park showing the roads running through the park was filed as Exhibit 5. Mr. McCracken suggested that the side streets shown would have less traffic. That suggestion encompassed Bruce Street; the one Mr. MacPherson’s trailer backed onto. Mr. MacPherson did not agree:
Q: … variety of side streets that lead to other trailers -- they would be quieter, right?
A: Not so much. People come down the main road, there’s not that many trailers on that main, people come and go off on the arteries – there’s more trailers in there, busier.
[100] Mr. McCracken went on to suggest that Bruce Street is a fairly quiet road compared to the others. Again, Mr. MacPherson did not agree. When Mr. McCracken asked Mr. MacPherson to explain why he didn’t agree, the following exchange occurred:
A: The main doesn’t have as many trailers on it. My road, which is Bruce Street, has a fair amount of trailers as well as the other roads to the left and the right.
Q: Is it your evidence, and I just want to be clear on this point, that in the summer of 2016 and let’s include the summer of 2017 that the road directly behind your trailer was just as or busier than the main road coming off Highway 17?
A: Yes.
[101] Despite taking that position, near the end of his cross-examination Mr. MacPherson agreed that the back of his trailer site, where the bedroom faces Bruce Street, isn’t that busy.
[102] Mr. MacPherson confirmed that his bedroom had the kind of blinds as described by M.K.H. and that they were positioned as described by her. In addition, Mr. MacPherson confirmed that at 5’8” or 5’9” tall he could stand upright in his bedroom. Mr. MacPherson also conceded that all of the floors of the trailer were three steps above ground level.
[103] Despite these concessions, Mr. MacPherson did not accept the Crown’s suggestion that being three steps up from ground level would make it difficult for someone walking by to see into that bedroom.
[104] The Crown asked about the height of the windows in that bedroom and did not challenge or quibble with Mr. MacPherson’s answer that the windows began “about” half-way up the walls of the room. As must be clear, in this area of cross-examination the Crown was dealing with the issue of privacy.
[105] Mr. McCracken went on to deal with the issue of opportunity and obtained the following concessions from Mr. MacPherson:
- his wife had a lot of friends in the trailer park;
- most of her friends would come to their trailer to visit but not invariably;
- his wife’s sister has had a trailer in the park since 2005;
- his wife’s sister would come up to the park every weekend;
- his wife and her sister would visit with each other at their trailers;
- while his wife was a homebody she would go out from time to time;
- she would walk over to her sister’s trailer and socialize for an hour or two;
- on almost every weekend his wife would go over to her sister’s trailer.
[106] Despite providing these answers Mr. MacPherson also said that over the whole of the 17 or 18 years that they had had a trailer there were only one or two occasions when his wife may have left their trailer to go someplace in the park without him.
[107] Mr. MacPherson confirmed that he and his wife arrived at and left the trailer park in separate vehicles at different times. He agreed that he would arrive on Fridays and on a very rare occasion, on a Thursday. His wife would come up to meet him between noon and two and they left “pretty much” at the same time but not invariably. Sometimes he would leave after her and sometimes before.
[108] In addition Mr. MacPherson conceded that there were a few occasions, and at least once every weekend, when he would be by himself. Additionally, he conceded that:
- there would be times when he would drive M.K.H. alone on the golf cart at least once a weekend;
- at times he would drive her back to his trailer;
- on occasion he would be inside his trailer with M.K.H.; and,
- there were a number of times when he would be alone with M.K.H. when his wife was out.
Gail MacPherson’s Evidence
[108] They purchased their new trailer in 2019. Their dog, Maggie, is still alive and was 11 when Ms. MacPherson testified. I infer therefore that Exhibit 3 was taken on or after 2012, since Maggie is named in the picture.
[109] Mrs. MacPherson would usually go up to the trailer park on Fridays and would arrive at 2:00 or so.
[110] She spent most of her time at the trailer park cooking or cleaning or both, but she would have lots of company popping over including her children and her granddaughter. In addition, her trailer park neighbours were always joining in as her site was a social hub and as she didn’t venture off too far. People came her way, often for drinks rather than to eat.
[111] She described Pete Myers and his spouse, (their neighbours on the left), as being the closest of their friends who would come over often during the day, but many others might visit too. Naming several others Mrs. MacPherson said, “Like there was always a packed (sic) of people coming over.”
[112] Mrs. MacPherson said that she could see her sister’s trailer from her own. When asked how far away her sister’s trailer was, Mrs. MacPherson said, “Phew, how can I? I don’t even know. I’m not a math person.” When asked how long it would take to walk from her trailer to her sister’s she said, “seconds”. While Mrs. MacPherson said that she would go over to her sister’s trailer once a day, most of the time her sister would come over to the MacPherson trailer. When asked how long her sister would stay, Mrs. MacPherson said, “She would stay for a while to chat.” When asked how long that was her answer was, “a few hours, you know.”
[113] She described M.K.H. and Sd.H. as “good girls, they were well-behaved, very mannerly.”
[114] Mrs. MacPherson was asked how often Emma was up in 2016 and 2017. In attempting to answer that question she said, “She’s 16 now. She was born in 2007 …17, no I’m way off with my math.” She recalled that Emma was about eight when she came up in 2016 or 2017. She described Emma and M.K.H. as playing for a few hours then separating and coming back and getting together again.
[115] Her husband would be on his golf cart throughout the day.
[116] Mr. Neuberger had Mrs. MacPherson return to describing her actions and the activities around her trailer on a typical weekend. She described people visiting constantly, without prior notice or planning and that her daughter Mandy would come up “quite a bit” until she got her own trailer. That prompted the question of when that happened?
A: When? You’re asking me to think back on years. I couldn’t tell you.
Q: Was it before 2016?
A: I don’t know, I don’t recall, I honestly don’t recall. I don’t know years. … No she didn’t get it then, she got it after.
[117] When asked to estimate how may weekends Emma came up to the trailer park in 2016/2017, Mrs. MacPherson simply said that she came up often.
[118] Mrs. MacPherson could not remember if there were any weekends over “the last few years” when she did not come up to the park on a weekend. She could not really say that she remembered missing any weekends, but she guessed that it was possible she had done so.
[119] While she witnessed M.K.H. going into the MacPherson trailer, she never saw her husband accompanying her. Additionally, she said that her husband never asked her where or what she was going to be doing during the day or asked questions to ascertain her schedule for the day.
[120] In cross-examination Mrs. MacPherson said that there was a “short” curtain that separated off their bedroom and it was not common for people to come to their bedroom looking for them.
[121] In addition to visiting her sister at least once a day, she would from time to time occasionally visit other friends at the trailer park, but she said she would only do so seldomly. Additionally, on occasion she might have to leave the trailer park to go to a grocery store but, again, this was an outing that she seldom engaged in.
[122] Finally, she agreed that it was not uncommon to see M.K.H. in their trailer or to see M.K.H. on her husband’s golf cart, but she did not accept or agree that her husband would ever be alone at their trailer when she returned to it.
Q: There were times when you would get back to your trailer from say visiting your sister or running errands and your husband would be alone there, right?
A: Meh, very seldom, ever. He’d be off somewhere.
Q: Is it your evidence that that never happened or very seldom, like can you recall an instance?
A: When he was there alone?
Q: Yah.
A: No, he’s a social butterfly.
[123] Contrary to Mr. MacPherson’s testimony, Mrs. MacPherson’s recollection was that she and her husband would generally arrive together and leave together.
Q: You were there … He would sometimes arrive up early on Thursday, correct?
A: Mmh hmm, yah, not too much, mostly Friday he’d wait for me.
Q: He’d arrive before you often on Friday, correct?
A: If we came together no, he would wait for me. Like the majority of the time we’d come together.
Q: The majority of the … like in the same car, the majority of the time?
A: Yes, yes, yup.
Q: Sometimes when you came in separate cars on Sunday you would leave first, right?
A: We’d basically leave at the, almost the same time.
Q: Okay, always or, or?
A: I would say, I’m gonna say yes.
Q: So you, I just wanna ...
A: I’m gonna say yes, we leave, we’re gone very early in the, not very early but like 11 o’clock in the morning, on a Sunday.
[124] Finally, Mr. McCracken suggested, and Mrs. MacPherson agreed, that there were times every weekend, for at least a few minutes, when her husband could have been alone in the trailer.
Q: I’m gonna suggest Ms. MacPherson that there were times every weekend for at least a few minutes where your husband could have been alone in the trailer.
A: Could have been? Yah.
[125] While Mrs. MacPherson may have had Aveeno cream in her trailer, she always kept her creams in her bathroom and never in her bedroom.
Peter Myers
[126] Mr. Myers is a firefighter who retired with the rank of captain after 30 years with the City of Burlington. He has had a trailer at the park since 2011 and is a good friend and neighbour of the MacPhersons and their family. His trailer is to the left of the MacPherson trailer as depicted in Exhibit 3. He identified the photograph as having been taken on or after 2012.
[127] He said that the MacPhersons would come up to the park on Fridays and regularly leave on Sunday mornings around 11:00 a.m. at Mrs. MacPherson’s behest.
[128] Mr. MacPherson would arrive first on Fridays and she would appear an hour or two later.
[129] He called Mrs. MacPherson a “homebody” who was famous for her cooking and cleaning and he and she shared an interest in cooking.
[130] Mrs. MacPherson would always be at the trailer and the MacPherson trailer was a busy little hub of visitors and constant activity.
[131] Mr. Neuberger asked Mr. Myers about sightlines from his trailer to the MacPherson’s:
“So, from my kitchen window, my living room window was looking to the side. I could see the rear of the trailer, the side of the trailer, the front of the trailer. And in the back yard where we sit, we were in complete eyesight of their whole trailer and the people that came and left.”
[132] Typically weekends at the park would be busy with visits being unscheduled except around supper time when visiting would be planned.
[133] He would see M.K.H. frequently because there were not a lot of other children in the park so she would be hanging around with adults, all of whom were kind to her. She seemed like a friendly little girl. He would see her walking on her own or with her sister or with Emma.
[134] He wasn’t able to say how often Emma came to the park; he really didn’t know, other than that he saw her lots of weekends. However, he never saw M.K.H. alone with Mr. MacPherson, as there was always a gang of people around his trailer.
[135] While he acknowledged that “it depends on the people, I guess” but he would not hesitate to pop his nose into their trailer and ask Gail for ingredients, if he needed something, as the MacPhersons were his closest friend at the park. However, in cross-examination he agreed that while he might open the porch door and yell “hello”, if he did not get a response, he would not continue into the trailer and he would not continue into the bedroom to look for someone.
[136] Occasionally he would see Mr. MacPherson come up alone on a Friday. Once a month Mr. MacPherson might get there at 2:00 or 3:00 p.m. and his wife would get there a couple of hours later. He had no recollection of Mrs. MacPherson not being there for a weekend, leaving her husband alone at the park and likewise he was not aware that Mr. MacPherson might come up on a Thursday.
[137] To his knowledge, the MacPhersons came up in separate vehicles. While they usually came up on Fridays at separate times, they usually left at the same time. He did not deny that they may have left at different times; that that may have happened, but they usually left on Sundays at the same time.
[138] He was not particularly close to M.K.H. or her family. While he became aware of the allegations being made against Mr. MacPherson in 2021 shortly after Mr. MacPherson was charged, he said that his evidence was not at all influenced by his knowledge of the allegations.
[139] He agreed that Mr. MacPherson sometimes gave children rides on his golf cart and that he saw M.K.H. being driven around by Mr. MacPherson sometimes with others and sometimes alone.
[140] He agreed that prior to being told of the allegations he had no reason to track the movements of M.K.H., that she was just another child in the park, who may have come to Mr. MacPherson’s trailer in a group with others or on her own. In cross-examination, inter alia, he was asked and said:
Q: I take it at some point you became aware of that suggestion that this couldn’t have happened because there were always people there. Was there ever that discussion between you and the MacPhersons or anyone else?
A: Ah, I’m sure that that came up for sure, ya.
Q: And it was at that point either four or five years later that you’re remembering the movements of M.K.H. in the summer of 2016 and 2017, correct?
A: Correct.
Q: Would it be fair to say that you can’t say for certain whether you ever saw M.K.H. in his trailer or not?
A: That would be fair to say that.
[141] While Mr. Myers’ picnic table was at the back of his trailer with ready sightlines to the MacPhersons, his BBQ was on the deck at the front of his trailer, as described by M.K.H.
[142] Finally, he agreed with Mr. McCracken’s suggestion Bruce Street is much less busy than the main road of the park.
Defence Submissions [^9]
[143] Mr. Neuberger relied upon written submissions, which he characterized as being comprehensive. I filed them as Exhibit C to permit ready reference to them. In brief compass Mr. Neuberger submitted what follows, albeit not necessarily in these words.
[144] In arriving at a conclusion on whether the Crown has met its burden of proof to the exclusion of any reasonable doubt the central issues are reliability, credibility, and plausibility.
[145] Any purported application of common sense in the assessment of the evidence of any witness that is not securely tethered to the evidence must be avoided. However, plausibility connotes an application of common sense that is grounded in the evidence.[^10]
[146] The onus and burden of proof on the Crown is the lens through which the evidence must be assessed. When viewed through that lens the Crown’s proof fails to meet its burden. That failure is, inter alia, a consequence of inconsistencies and implausibilities in the evidence of M.K.H.
[147] When her evidence is considered in the context of the evidence as a whole, it is simply insufficient to support a finding of proof to the exclusion of any reasonable doubt.[^11]
[148] Mr. MacPherson testified and so W. (D.) must be applied in substance. By way of an anticipatory submission, Mr. Neuberger noted that R. v. J.J.R.D., [2007] S.C.C.A. No. 69 does not change that law.[^12] However, Mr. Neuberger referred to an observation by Justice Paciocco that “the credibility of inculpatory evidence must be particularly impressive before that evidence can be credited beyond a reasonable doubt in the face of facially unassailable exculpatory evidence.” (Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment, 22 Can. Crim. L. Rev. 31, February 2017).
[149] As noted above at paragraph [147], M.K.H.’s evidence is too compromised to come within the ratio of J.J.R.D. The challenges to and the weaknesses of her evidence will be marshalled in the succeeding paragraphs.
[150] When examining M.K.H.’s evidence in context, it is important to recall Justice Paciocco’s advice to consider the probability or improbability of an account. At paragraph [30] of R. v. Kiss, 2018 ONCA 184 Justice Paciocco approved the following statement:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such cases must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[151] The salient point in this area of Mr. Neuberger’s submissions is that what M.K.H. alleged is grossly improbable in the context of the social hub of the MacPherson trailer. Simply put, there were too many people nearby and the trailer was too open to view. There was no likelihood that the regular periods of privacy that M.K.H.’s allegations necessitated existed or could exist. The MacPherson trailer was such a hub of activity that there simply was no reasonable opportunity for these things to have happened. Moreover, they could not have happened once a day on Saturday and Sunday as she alleged given that the MacPhersons left on Sundays at 11:00 a.m.
A Major Internal Contradiction
[152] M.K.H.’s evidence was that Mr. MacPherson had her masturbate him in the bedroom of his trailer at least once a weekend during the summer of 2016 even though:
- the MacPherson trailer was a hub of community weekend activity;
- Gail MacPherson was present on the weekends;
- M.K.H.’s time was fully occupied by friends when they visited.
[153] Despite this last bulleted concession M.K.H. continued to insist that she was alone with Mr. MacPherson once or twice every weekend without anyone noticing:
Q: […] So your – your recollection is that what you say happened with Mr. MacPherson occurred on weekends, correct?
A: Yes.
Q: Once or twice per weekend, is that correct?
A: Yes.
Q: Every weekend of the summer, is that correct?
A: Yes.
Q: And so we can agree that your recollection is that this happened at least more than once on a weekend in that summer?
A: Yes.
Q: And your evidence is that this happened during the daytime?
A: Yes.
Q: Never in the evenings, correct?
A: Yes.
Q: And so you would spend the whole day with Emma and with Sd.H., your sister, and just hang out on these weekends when she’d be up, is that correct?
A: Yes.
Q: So to be fair, throughout the summer, Emma would’ve been up on at least four or five occasions in July and August, is that correct?
A: Yes.
Q: … Emma was somebody who became a really close friend at the – at the trailer park, correct?
A: Yes.
Q: Okay. And so, when she did come up, you’d spend Saturday from morning till evening with her, and the same on Sunday, morning to evening with her, correct?
A: Yes.
[154] Like Emma, M.K.H. agreed that she would spend almost all of her day with two other friends, E., and S.S., who each made a visit to the park in 2016.
[155] In addition to this patent internal contradiction Mr. Neuberger contended that the fact that M.K.H. stated that this happened during daytime hours with the blinds open, (in the sense of the louvers being horizontal), makes her allegations implausible.
[156] The implausibility of her allegations is increased, in counsel’s submission, by M.K.H.’s agreement that Mr. MacPherson’s wife, Gail, was often present and cooking at the trailer throughout the day.
Q: Okay. And when you’d come over sometimes on weekends, you’d notice that Gail was cooking throughout the day, do you remember that?
A: Yes.
[157] The implausibility of M.K.H.’s allegations is heightened further still by her evidence that Mr. MacPherson would sometimes make a request of her to “do it” while they were together on his golf cart and not at his trailer. That kind of request strains credulity, given the prospect of people being there when they arrived, due to the communal and social nature of his trailer, where unannounced visits were the rule.
[158] Given these admissions, “[t]he window of opportunity for Mr. MacPherson to have lured [M.K.H.] to his trailer to commit these acts every weekend is drastically reduced”. This is particularly so on Sundays, when the preponderance of the evidence is that the MacPhersons would leave at the same time, usually around 11:00 a.m.
[159] M.K.H. was adamant in cross-examination that the abuse happened every weekend on a Saturday or Sunday.
Q: There were weekends in July and August of 2016 when you never went into Mr. MacPherson’s trailer, correct?
A: No.
Q: You’re saying on every single Saturday and Sunday of July and August of 2016, you always went into his trailer at least once during the weekend, Saturday and Sunday?
A: Yes.
[160] Mr. Neuberger stressed that when this internal contradiction developed by his cross-examination was put to her, M.K.H. was at a loss to explain how her two stands of testimony could stand together. It is the position of the defence that “[t]hese are not minor inconsistencies in [M.K.H.’s] evidence, it goes to the core of the alleged abuse.”
Actual Memory / Confabulation / Mendacity
[161] Beyond this internal contradiction, Mr. Neuberger submits that “M.K.H.’s memory seems to be not rooted in actual memories. One answer he cites in support of this submission is that while M.K.H. estimated that these masturbatory acts lasted for about seven minutes, she was “without any real memory of how these instances would end.”[^13] Respectfully, this submission, based upon the answer that M.K.H. gave in cross-examination, is unconvincing in light of her earlier answer.
[162] Additionally, counsel contends that M.K.H.’s lack of real memory is manifested by her resort “to guessing, making up a particular day and time” in the following lengthy sequence of cross-examination.
Q: All right. And so on the occasions that S.S. was up there, this never happened, this abuse never happened, correct?
A: If I wasn't with her, it would’ve happened that weekend. Like when - if I wasn't with her at a certain time that day.
Q: You don't really have a memory, you're just guessing, right?
A: For the most part, yes.
Q: And when Emma was up for those four or five weekends for July and August of 2016, you spent time with her, so on those occasions, the abuse never happened, correct?
A: I know one time for sure when she was up there it did happen. The other times, I'm not 100 percent.
Q: And - and the one time that you say that she was up there that it did happen, what were the circumstances? Do you have any recollection?
A: It would’ve been me and Stu only at the trailer, everybody else would have been at his daughter's trailer.
Q: Everybody else. And - and do you remember what time of day that was?
A: I would say after lunch, before dinner.
Q: To be fair, you don't have a specific recollection of that day?
A: Yes.
Q: So you're agreeing with me, is that correct?
A: Yes.
Q: And your memories of the occasions when you say this happened are really quite spotty, isn't that fair?
A: Certain times, I know - I know more than others, but I know it did happen majority of that summer.
Q: Again, when you say that it happened every single weekend once or twice, that's not correct, right?
A: Can you repeat the question, please?
Q: When you had said to us, and it was in your interview, that this happened every single weekend of the summer, of 2016, that's not correct?
A: No, I don't think it's fully correct.
Q: To be fair, when you were up....
THE COURT: Wait, wait, "No, I don't think that's incorrect"? Do you agree with the suggestion or do you think that it did happen every weekend, despite the things you've told me?
A: This isn't 100 percent answer, but I'm pretty sure it happened every weekend.
THE COURT: Yes. All right.
MR. NEUBERGER: Okay. Well, I think I'll just follow up on that.
THE COURT: Please, you're welcome to.
MR. NEUBERGER: Yeah. No, thank you very much.
MR. NEUBERGER: Q: There were weekends in July and August of 2016 when you never went into Mr. MacPherson's trailer, correct?
A: No.
Q: You're saying on every single Saturday and Sunday of July and August of 2016, you always went into his trailer at least once during the weekend, Saturday and Sunday?
A: Yes.
Q: Okay. What I'm suggesting to you is that the times that Emma were up, so you said one time it did happen, so on the other four times, three or four times that she came up to the trailer, those weekends, nothing happened with Mr. MacPherson, correct?
A: I don't remember if anything happened those weekends or not.
Q: So what I was asking you was, when you said this happened every weekend of the summer, once or twice, that was not accurate, correct?
A: Yes.
Q: You don't really have a recollection of this happening in July and August on any occasion of 2016, correct?
A: No.
THE COURT: That answer is not clear to me. No, you're agreeing, or no, you don't have a recollection? Try and ask the question again and give an answer that's clear to me.
MR. NEUBERGER: Q: You do not have a specific recollection on any given weekend in July and August of 2016 of this abuse happening, correct?
A: That is incorrect.
Q: You have - you have memories of it happening on every single weekend?
A: Not every single weekend, but I do remember it happening.
[163] Mr. Neuberger contended that M.K.H. vacillated in her evidence and that she “[made] up a particular incident after lunch but before dinner when his family was at the daughter’s”. He made two further submissions based upon this sequence of testimony regarding this incident. First, it is absent from her statement to police of April 29, 2021 and second[^14], it “is a stark example of a willingness to make up evidence to address the implausibility of her evidence.” I shall speak to this latter complaint later in these reasons.
[164] Mr. Neuberger concluded his assessment of M.K.H.’s evidence in these terms:
With allowance for the fact that M.K.H. is giving evidence at this trial at the age of 14 soon to be 15, looking back at events when she was much younger, the issue remains that there are considerable frailties that go to the core of her evidence that are compounded by the surrounding evidence limiting if not eliminating the reliability of her evidence.
[165] While Mr. Neuberger reviewed the evidence of the other witnesses called, I need not recapitulate that portion of his submissions, however, I paste his conclusion hereafter.
Conclusion:
Given the evidence from all witnesses about the level of activity and number of people on Mr. MacPherson’s property throughout each day, it would have been an incredibly brazen and high-risk behaviour for him to engage in sexual contact with a child. Not only is it unlikely that this behaviour would have gone undetected, Mr. MacPherson is alleged to have committed these acts numerous times, each weekend, during daylight hours without ever bothering to even close the blinds on the three windows in his bedroom.
M.K.H.’s evidence is internally inconsistent:
- She admitted that there were usually people present at Mr. MacPherson’s trailer but continued to insist that she was alone with him at least once a weekend without anyone noticing.
- She admitted that during the times she attended the trailer when an incident occurred there were people in the immediate vicinity.
- She admitted that when Emma or her friends were visiting she spent the entire day with them on Saturdays and Sundays yet continued to insist that she was alone with Mr. MacPherson every weekend.
- She admitted that Gail MacPherson was usually home at the trailer yet continued to insist that she was alone with Mr. MacPherson every weekend.
- When pressed in cross-examination on whether her evidence that the impugned conduct occurred every weekend of the summer was inaccurate, she resorted to making up a particular occurrence after lunch but before dinner where everybody would have been at his daughter’s trailer.
- That she was vague on her claim that it happened every weekend, and then was guessing or qualifying her answers that “I know it happened the majority of that summer.”
M.K.H.’s initial claims in her statement of April 29th, 2021, of these events happening at least once or twice every weekend became more of speculative reasoning about what “would have” been happening in order to explain the implausibility.
Although, the defence does not and cannot assert that there was never an opportunity for Mr. MacPherson to have engaged in the alleged conduct, given the surrounding conditions of a summer weekend at the trailer park and specifically on his property as a hub of activity, and the claim of this occurring every weekend at least once or the majority of weekends, the defence submits that the plausibility of the allegations has to impact the assessment of proof beyond a reasonable doubt.
Mr. MacPherson was out and about all weekend long, enjoying time with his wife, family and friends. He enjoyed taking M.K.H. and her sister out on the river and when Emma was at the trailer on an excursion, but that does not amount to grooming activity or support that he would for his own sexual gratification ask M.K.H. in the golf cart to “help him” and bring her back at random times during a weekend to his trailer bedroom for a period of time exceeding five minutes when the probability of any one of his family members or his friends attending his trailer was extremely high. Not only is the evidence of M.K.H. inconsistent and lacking reliability, the alleged conduct under those conditions makes the prosecution evidence highly suspect and cannot be the foundation of a conviction beyond a reasonable doubt.
Crown Submissions
[166] Mr. McCracken provided me with a brief of authorities under the following headings with certain paragraphs highlighted as follows:
INDEX
The Assessment of Credibility, Generally
J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.) at paras. 45-48, 53.
O.M. 2014 ONCA 503 at paras. 40-49.
C.G. 2021 ONCA 809 at paras. 53-55.
The Assessment of Child Witness Credibility / Adults Recounting Childhood Events
G.B., 1990 7308 (SCC), [1990] 2 S.C.R. 30 at paras. 47-48.
R.W, [1992] S.C.R. 122 at paras. 26.
O.H. 2016 ONCA 569 at paras. 50-54.
- D. 2022 ONCA 786 at paras. 4-8.
The Absence of (or Unproven) Motive to Fabricate
Ignacio 2021 ONCA 69 at paras. 31, 33, 37, 40, 48, 51-52, 59-60.
S.S.S. 2021 ONCA 552 at paras. 32-39.
Prior Consistent Statements I Reports
- G.C., 2006 18984 (ON CA), [2006] O.J. No. 2245 (C.A.) at paras. 4-5, 17-22, 26-27.
11.Khan 2017 ONCA 745 at paras. 32-33, 41, 44, 49.
Prior Consistent Statements I Reports
[167] Dealing with the last topic first, I have said nothing to this point about the brief evidence of D.S., a cousin of M.K.H.’s mother. As this was a judge alone trial, I agreed with counsel to permit Ms. S. to testify on a voir dire or provisional basis and permit counsel to subsequently argue whether her evidence was substantively admissible. I had grave doubts that it was and voiced those doubts to counsel. After hearing submissions, I found her testimony was hearsay, as well as a prior consistent statement of M.K.H. that was not admissible for any purpose. It was unnecessary testimony and more prejudicial than probative in any event and I so ruled. I will say no more about it.
The Absence of (or Unproven) Motive to Fabricate
[168] Turning next to the cases on motive I note and stress that Mr. Neuberger eschewed any reliance on motive whatsoever. Notwithstanding, I engaged counsel on the topic during submissions. Mr. Neuberger’s submissions, (aside from specifically abjuring any reliance on motive), were shortly stated; viz.: the topic of motive is “an intoxicating issue but a dangerous one.”
[169] Mr. McCracken noted that the H. family and the MacPhersons were two families that got along very well. Nonetheless, a good relationship is far from a sufficient basis to ground any finding that M.K.H. had no motive to fabricate. At most all the Crown can point to is that there is no evidence of any motive to fabricate. In the Crown’s view this means that there is an absence of what the Crown referred to as “a detractor” on the issue of credibility vis-à-vis M.K.H.
The Assessment of Child Witness Credibility …
[170] Next, the Crown relied extensively on the directions from the Supreme Court of Canada about how a factfinder ought to assess the evidence of children and how that evidence should be considered when related by a witness who was now an adult testifying to events that they say happened when they were children. In this case it is M.K.H., as a young teenager testifying about events that happened during the summer when she turned eight.
[171] Mr. McCracken submitted that the inconsistencies that Mr. Neuberger focused on are exactly the kind of evidence that appellate courts allow trial judges to attribute much less weight to when it comes to the evidence of children; and even of adults when testifying to events that they say occurred when they were children.
[172] Not surprisingly, given the experience and forensic skills of Mr. Neuberger and Mr. McCracken, both counsel agree about the law relating to evidence given by children.
The Evidence of Children
[173] The Supreme Court of Canada has, on several occasions, provided guidance and direction on how the evidence of children should be approached and on the issue of delayed disclosure. I begin with the later from R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44 (SCC) at paragraph [65]:
65 A trial judge should recognize and so instruct a jury that there 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.
[174] Moreover, I must be mindful of the reality that inconsistencies in a child's evidence may be of less importance in assessing credibility than in the case of a reasonable adult. As explained in R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30 (SCC) at paragraph [48]:
48 … the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. … The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
[175] In R. v. W. (R.) (2000), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.) Justice McLachlin, (as she then was), provided an extensive lesson on how to assess the evidence of children, in particular, and more generally, any witness’ evidence:
23 … I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: … The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.
24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, …
25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
26 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.
[176] Nonetheless, as noted by Justice McLachlin “protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.” The same point was stressed by Justice Watt in R. v. K.S., 2017 ONCA 307.[^15]
The Requirement for Proof to the Exclusion of Any Reasonable Doubt
[177] In R. v. K.S., 2017 ONCA 307 Justice Watt wrote:
10 The trial judge also reminded herself that this common sense approach to the evidence of children does not mean that their evidence is not subject to the same standard of proof as the testimony of adult witnesses in criminal cases. A verdict of guilt requires a solid foundation whether its evidentiary support resides in the testimony of a child, of an adult, or of some combination of the two. That a child is the principal or sole support for the Crown's case does not lessen the standard of proof required to establish guilt.
[178] Mr. Neuberger made the same point in his written submissions, relying on paragraph [25] of R. v. Barua, 2014 ONCA 34.[^16]
[179] Based upon the cases describing how the evidence of children ought to be assessed, Mr. McCracken urged that any inconsistencies in M.K.H.’s evidence about events that she says occurred in her childhood relating to time and location should be considered in the context of her age at the time of these events.
The Crown’s Submissions on Frequency
[180] In response to this submission, I asked Mr. McCracken if “frequency” was also encompassed by these precedents.
[181] Mr. McCracken responded by referencing R. v. D.H., 2016 ONCA 569, [2016] O.J. No. 3815 (C.A.) where, at paragraph [53] the Court ruled, inter alia, that a complainant's inconsistency in recounting 10 occurrences to the police as an adult and then expanding those occurrences to be 120 at trial was a significant deficit to that complainant’s credibility, as "one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions."
[182] However, the Crown urged that that is not the situation that obtains here. M.K.H. is not an adult who gave one assessment of frequency to the police and another to the court. She was a 13-year-old grade 9 student when she spoke to Lewis and she was not yet 15 when she testified. Moreover, she was recounting events from the summer when she was seven and turning eight. In the Crown’s submission, any inconsistencies in her evidence about the frequency of the abuse she alleges must take those ages and time frames into account.
[183] Indeed, D.H. at paragraph [50] supports the Crown’s contention that “frequency” like time and location may be a peripheral matter.
50 Another issue that the trial judge labeled as peripheral was the complainant's inconsistencies on the number of times she was abused by the appellant. In R. v. H.S.B., 2008 SCC 52, [2008] 3 SCR 32, at paras. 11, 14-15, the Supreme Court allowed that a trial judge may treat this issue as peripheral when assessing an adult witness's credibility in the context of remembering events from childhood.
[184] For ease of reference I footnote paragraphs [11], [14] and [15] of R. v. H.S.B.[^17]
[185] The Crown submits that I should find that these events happened with some degree of frequency, even though most but not all of the events have blended together in M.K.H.’s memory. Accordingly, I should not be left in any state of reasonable doubt about Mr. MacPherson’s guilt based upon any issues arising out of M.K.H.’s evidence about how frequently this abuse occurred.
[186] In making this submission, Mr. McCracken specifically acknowledged that the burden on the Crown is not lessened because a complainant is a child. But he stressed that while a court must be satisfied to the exclusion of any reasonable doubt, the Supreme Court of Canada clearly was aware of that universal burden when they made their comments on the assessment of the evidence of children. In other words, Mr. McCracken urged that I can conclude that while the frequency of this abuse during the summer of 2016 may not be precise, I can be satisfied that it occurred even if some of the peripheral details may be imprecise.
[187] Despite the imprecision that the Crown appears to concede, Mr. McCracken submitted that M.K.H. recalled and identified three specific occurrences of abuse.
[188] She was able to identify and describe some aspects of the first time it happened. On that occasion it was Mr. MacPherson who squirted the cream onto her hands, and she told him that the cream, (Aveeno), was the brand her mother used. Subsequently, she knew what to do and put the cream on her hands herself. The Crown submitted that, logically as one would expect, that time sticks out in her mind because it was the first time.
[189] The second specific time that she remembers rubbing Mr. MacPherson’s penis with cream was the day when her friend E. came to the park in the summer of 2016. Like a contemporaneous note that refreshes one’s memory, the photo of the time when E. came to the trailer park is an anchor, solidifying a specific occurrence that she recalled.
[190] The third specific incident that M.K.H. recalled was the time when Mr. MacPherson attempted to, (as the Crown described it), “finish himself off”. Mr. McCracken suggested M.K.H.’s description of this occurrence had “child-like” simplicity about what he did in that moment.
[191] In the Crown’s view, those are three events that stick out in her mind where her evidence was strong and powerful. This evidence stands on its own even though the Crown accepts that there are a number of other incidents that she can’t pick out with any degree of precision. The Crown urges that the court ought not use her evidence in cross-examination on the point of how frequently these events took place to buttress any support for the “lack of opportunity” defence raised.
[192] Mr. McCracken continued to contend that the inconsistencies about frequency were peripheral matters and therefore of limited weight on both M.K.H.’s reliability and credibility.
Proximity and Opportunity[^18]
[193] In response to my inquiry about how I ought to deal with the evidence of the witnesses that this was a very convivial place; that the MacPherson trailer was a social hub; and, that Mr. Myer’s trailer was within a stone’s throw, Mr. McCracken made the following submissions.
[194] In the Crown’s submission, the defence characterization of the situation at the trailer park is “a bit of a mis-leading picture about what could go on at the MacPherson’s trailer. The defence evidence on this point would have the court believe that there was no privacy at this trailer”. ‘This was a summer vacation home. [Mrs. MacPherson] went to visit her sister frequently and was out for an hour or thereabouts. And recall M.K.H.’s evidence on this point was that it was seven minutes or thereabouts.’ Even given the imprecision with which adults can measure time, in the Crown’s view, these incidents of masturbation took no more time than would be required to use the toilet.
[195] In addition, Mr. McCracken pointed out that the park seemed to be treated as a very safe place in the minds of the H. family because their children were permitted to wander about alone. M.K.H. and her sister seemed to be able to have the run of the place. Even Mr. Myers admitted that it was a common occurrence to see M.K.H. He had no reason to pay attention to her. On all of the evidence, it was common for M.K.H. to be around Mr. MacPherson and around his trailer.
[196] In an exchange with the Crown I suggested that the thrust of the defence is that it is improbable that this would have happened as regularly as M.K.H. alleged given the proximity of other individuals and given the potential visibility into the bedroom. That said, I note that there is no direct evidence of what one could see either from or into the bedroom windows of the MacPherson trailer.
[197] On these two points the Crown contended that no one had cause to notice M.K.H.’s comings or goings from the MacPherson trailer since her presence there was commonplace. Insofar as privacy and the trailer windows are concerned Mr. McCracken noted that the bedroom in the trailer did offer sufficient privacy for the few minutes these acts of masturbation took for a variety of reasons.
[198] First, Mr. Myers was the closest neighbour to the MacPhersons both by distance and by friendship. Despite that close relationship Mr. Myers admitted that he would not walk into the trailer unannounced. He testified that he might, as a close neighbour and good friend, pop his head into the room off the porch but that is as far as he would go without being acknowledged. By implication the Crown contends that if that is as far as Mr. MacPherson’s closest neighbour and best friend at the trailer park would venture, there was no danger to Mr. MacPherson of being interrupted or intruded upon while abusing M.K.H.
[199] As to visibility into the bedroom, Mr. McCracken argued:
- the trailer is up off the ground on blocks;
- the entrance to the trailer is off the added room;
- the porch door into the added room is three steps from ground level;
- all of the trailer’s floors are three steps from ground level;
- the windows in the bedroom start halfway up the wall of the trailer;
- Mr. MacPherson at 5’9” can stand straight up in the bedroom;
- Therefore, the bottom of the windows in the bedroom are about six feet up from ground level.
[200] Mr. Myers said he never looked into Mr. MacPherson’s bedroom windows. As I have already noted, there is no evidence about what could be seen from any vantage point outside of the trailer and looking in. The back window of the bedroom looks out onto Bruce Street, which is much less travelled than the main road, according to Mr. Myers.
[201] In the Crown’s view any concerns respecting the trailer being a social hub or respecting the possibility of being seen while in the bedroom are fully answered.
R. v. W. (D.)[^19]
[202] Mr. McCracken submitted that Mr. MacPherson’s evidence about Bruce Street being as busy or busier than the main road “defies logic” based upon the overview map of the park and the evidence of Mr. Myers on that point. That piece of evidence from Mr. MacPherson is, in the Crown’s view, a sufficient reason to reject his denial of culpability. “And that’s a big enough reason to reject his evidence?”, I asked. Mr. McCracken answered that it was because, in his submission, the answer is a lie that goes to the core of the defence. Put otherwise, the Crown submitted that Mr. MacPherson knew that in order to mount a successful defence on the basis of a lack of opportunity to commit the offences alleged he needed to make Bruce Street as busy as possible. As a result, he submitted that Mr. MacPherson was evasive and untruthful on this point.[^20]
[203] In contrast, Mr. McCracken contended that any inconsistencies in M.K.H.’s evidence were on non-core points, and she was and is, arguably, a child. Mr. MacPherson’s inconsistency is on a core point about a trailer that he has occupied since 2005. He would know exactly how busy Bruce Street was. His answer is central to this case: viz., how visible that bedroom is and how likely it is that someone coming by would see into that bedroom. And so, Mr. Myers, not appreciating the significance of the answer truthfully said Bruce Street was not busy at all.
The Crown’s Recapitulation
[204] What has been presented is “a no opportunity defence” when there was opportunity in fact. Given that M.K.H. was commonly around his trailer so that it was not odd to see her there, given that she was entrusted to Mr. MacPherson who commonly took her on his golf cart and onto the water, given the short time the abuse took, given the privacy afforded by taking her into the bedroom of his trailer, the court ought to be satisfied to the exclusion of any reasonable doubt about the guilt of Mr. MacPherson.
[205] Mr. McCracken submitted that Mr. MacPherson’s denial, which is central to his defence ought to be rejected because of his lie to the court about how busy the street right behind his bedroom was. He said Bruce Street was as busy or busier than the main road. That “allows you to reject his evidence” and then, in combination with her evidence the court ought to find guilt.
[206] The Crown submitted that J.J.R.D. ought to be applied, albeit with caution. Mr. McCracken submitted that this case presents the evidence of a child witness who, other than on the peripheral point of frequency, stands largely uncontradicted on the central aspects of her evidence. While Mrs. MacPherson said that she kept her lotions in the bathroom, lotions are easily moveable so that her contradictory evidence is of little moment and in any event, recalling the location of a lotion seven years before is unimportant.
[207] I am urged by Mr. McCracken to reject Mr. MacPherson’s denial so that I am not left in a state of reasonable doubt by that denial and having done so, I am urged to accept the complainant’s evidence, which the Crown characterizes as powerful enough on its own to meet the test of proof beyond a reasonable doubt.
Mr. Neuberger’s Reply
[208] Mr. Neuberger reiterated his earlier comment that motive is a dangerous issue to engage but he asked me to reject the Crown’s formulation that “the absence of evidence of motive” should be seen as the absence of a detractor to the credibility of M.K.H. Rather, Mr. Neuberger noted that whether a complainant is young or old, as controlling courts have regularly observed, complainants can make allegations for reasons that may never be known.
[209] During the Crown’s submissions I restated one Crown submission as characterizing the lack of opportunity/privacy evidence as a “straw man” defence. Mr. Neuberger took strong exception to any such characterization. He submitted that the evidence supporting a finding of a lack of opportunity to commit the alleged offences grounds the defence submission that M.K.H. was materially inconsistent. He explained what he meant as follows.
[210] M.K.H.’s evidence cannot be considered in a vacuum. It must be assessed in the context of the balance of the evidence especially:
- the evidence of the trailer being a busy place;
- the evidence that it was a social hub;
- the evidence about the proximity of neighbours and their trailers;
- the evidence about the presence of Mrs. MacPherson at the trailer; and,
- the evidence of Mr. MacPherson’s activities at the trailer park.
[211] Additionally, Mr. Neuberger reminded me that M.K.H. agreed that there were people in the immediate vicinity when she went to his trailer. It was not an isolated area. It was an area where one would be seen and recognized, especially given that Mr. MacPherson was well-known in that community.
[212] In short, Mr. Neuberger stressed that the area of the trailer, is an “extremely close area amongst trailers, cars, vehicles and individuals during the daylight before dinner, and in circumstances where he is alleged to take her into a room where the blinds aren’t even closed.” “This was an area where people would come by on a haphazard, unannounced and free-flowing basis and would walk and talk and visit and do whatever during the day”. Hence, it is implausible that he would ask her to do this while they were on his golf cart and bring her to his trailer when he would have no idea whether or not anyone would be there when he arrived with her.
[213] So, while he was not submitting that there could never be a single opportunity of being alone, Mr. Neuberger contended that the chances of that, that there would be nobody around was fairly low. Moreover, that lack of likelihood must be considered in conjunction with the issue about frequency because M.K.H. specifically stated that it was once or twice every weekend including Sundays, yet there was evidence from both Mr. Myers and Mrs. MacPherson that the majority of time the MacPhersons would leave at 11:00 a.m. on Sunday mornings.
[214] There was evidence from M.K.H. that she played with Emma on at least four or five occasions that summer; that she played with her sister and other family members including her aunt. There is a cluster of evidence that M.K.H. was often in the presence of adults and other children. Hence there simply was neither the time nor the opportunity that she suggests. That evidence undermines the likelihood of the frequency with which she says this happened and that makes her evidence unreliable and indeed, incredible.
[215] This condensed version of the evidence is the basis for Mr. Neuberger’s contention that M.K.H.’s evidence about frequency is a core inconsistency. Counsel stressed that it is not merely the internal frequency inconsistency in and of itself but also that this frequency inconsistency must be viewed in the context of the situation of the trailer as just précised. That is context in which M.K.H.’s evidence must be considered.
Reasons for Judgment
[216] Given the substance of M.K.H.’s allegations, there is no need to venture an exegesis of either s. 152 or s. 173(2) of the Criminal Code.[^21] The issue to be determined by me is whether the Crown has proved to the exclusion of any reasonable doubt that Mr. MacPherson committed the acts alleged. If it has, then Mr. MacPherson will be found guilty of both counts.
[217] In arriving at a conclusion on that issue I charge myself that the onus of proof rests solely on the Crown and its burden is to prove Mr. MacPherson’s guilt to the exclusion of any reasonable doubt. Mr. MacPherson bears no onus of proof, and he bears no burden of proof of any kind. I charge myself that this trial is not a credibility contest, even though the issues of credibility and reliability are significant matters for consideration, particularly the credibility and reliability of M.K.H.[^22]
[218] In his seminal paper “Doubt About Doubt”, Justice Paciocco recommends that a judge would be well-advised to patently note that “a reasonable doubt can be raised by exculpatory evidence even if that evidence is not entirely accepted as accurate, and that the rejection of exculpatory evidence is not a basis for convicting.” I have, albeit in different and less elegant and concise terms made the point in prior judgments. I do so again by way of an extensive footnote in which I charge myself to avoid a prohibited line of reasoning.[^23]
My Recapitulation of the Position of the Defence
[219] During Mr. Neuberger’s submissions I recapitulated the position of the defence as follows:
- the defence relies upon the presumption of innocence;
- the defence relies upon the fact that the evidence of the complainant is internally inconsistent; and,
- the defence relies upon the fact that the evidence of the complainant is inconsistent with evidence external to her testimony.
[220] Given those weaknesses, despite any challenge to Mr. MacPherson’s credibility based upon his prior criminal record for dishonesty, in light of all of the other evidence the court ought to have a reasonable doubt about his guilt.
[221] Moreover, the defence submitted that the ratio of J.J.R.D. has no application because the evidence there was much stronger than what is before this court. Mr. Neuberger submitted that there is no “anchor” here like the diary in J.J.R.D., in support of M.K.H.’s credibility.
[222] At a minimum, the Crown’s case founders on the second prong of W. (D.).
Decision
[223] I have reviewed the evidence in some detail, and I have recounted the submissions of counsel in great detail so that the parties will know that I have listened closely to the evidence and to the submissions and arguments that were made.
[224] I find Mr. MacPherson guilty of both counts. I shall attempt to explain why I have come to that conclusion to the exclusion of any reasonable doubt, as that level of proof is explained in R. v. Lifchus, [1977] S.C.J. No. 77 and R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40.
[225] I reject Mr. MacPherson’s express denials of guilt. Despite the vehemence with which he denied these allegations I harbour no reasonable doubt about his guilt based upon his denials. Nor do I harbour any reasonable doubt about his guilt when those denials are considered together with the other evidence and the arguments raised by the defence on the evidence. Those arguments include the implausibility argument, and they include the challenges urged against M.K.H.’s reliability and credibility.
[226] Moreover, I am satisfied to the exclusion of any reasonable doubt about Mr. MacPherson’s guilt based upon the evidence of M.K.H. despite some defects and weaknesses in her evidence that I shall discuss.
[227] In short, I believe M.K.H. when she tells me that Mr. MacPherson brought her into the bedroom of his trailer, dropped his pants and underwear down to his ankles and had her masturbate him on a number of occasions on weekends in the summer of 2016.
[228] My decision is, inter alia, an application of the ratio in J.J.R.D. In addition to the weaknesses in Mr. MacPherson’s credibility that I shall identify, I also reject his evidence as a result of my considered and reasoned acceptance beyond a reasonable doubt of the truth of M.K.H.’s conflicting credible evidence.
[229] That considered and reasoned acceptance of her evidence beyond a reasonable doubt is based upon the substance of her evidence. While her evidence contains an internal inconsistency about the frequency with which Mr. MacPherson abused her, that inconsistency does not cause me to have a reasonable doubt about the substance of her evidence.
[230] Additionally, the balance of the evidence, (from M.K.H.’s mother, Mr. MacPherson or his wife or Mr. Myers) does not cause me to have a reasonable doubt about Mr. MacPherson’s guilt whether considered by itself or in conjunction with Mr. MacPherson’s denials.
Mr. MacPherson’s Credibility
[231] Mr. MacPherson’s evidence is superficially unexceptional. After all, what more can a person do other than profess and protest their innocence? In a general sense, Mr. MacPherson’s evidence is reminiscent of how Justice Duncan described the evidence of the defendant in R. v. Jaura, [2006] O.J. No. 4157 (OCJ).
9 The defendant's evidence was neither impressive nor unimpressive. In a qualitative sense, it was rather neutral. It seemed neither patently true nor patently false. Being a general denial of the core of the allegations, it necessarily lacked detail, substance and the flavour that can sometimes alternatively either support or undermine believability. His demeanour while testifying was unremarkable. He did not contradict himself; …
[232] Justice Duncan went on, in that paragraph to say that “no central or peripheral falsity was exposed by cross-examination” and Justice Duncan was unable to “identify or articulate any shortcoming or flaw within the defendant's evidence. Viewed in isolation it cannot be rejected as untrue.” (emphasis added)
[233] In my view and contrary to Justice Duncan’s finding in Jaura, I identify two shortcomings in the evidence of Mr. MacPherson.[^24] The first one is the exaggeration noted and stressed by Mr. McCracken related earlier in these reasons at paragraphs [202] and [203]. I agree with the Crown that Mr. MacPherson knowingly exaggerated the extent of traffic on Bruce Street and that he did so in support of his denial of culpability. This exaggeration is a matter that makes weight against his credibility and against his willingness to be candid with the court and to speak the truth.
[234] Likewise, Mr. MacPherson exaggerated the number of times that his granddaughter, Emma, came up to visit during the summer of 2016 and 2017, when his evidence is compared to M.K.H.’s and his wife’s evidence on that point.[^25]
[235] That said, I would not have rejected Mr. MacPherson’s evidence based solely on these exaggerations. When these exaggerations are considered alone and in isolation they are no more damaging to his credibility than are the reliability defects in M.K.H.’s own evidence respecting the frequency of his acts of abuse against her.
[236] The second and in my view substantially significant defect to Mr. MacPherson’s credibility is his conviction for theft over $5,000.00 that was imposed on October 31, 2017 at Milton, Ontario. There and then he was convicted of theft over $5,000.00 and sentenced to a one-year conditional sentence and ordered to pay restitution of $52,696.00, as well as being placed on probation for two years. This is a documentation of a serious and significant offence of dishonesty. As Chief Justice Dickson said in R. v. Corbett, 1988 80 (SCC), [1988] S.C.J. No. 40, the fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness and that lack of trustworthiness may be evinced by contempt for laws which he is legally and morally bound to obey.
The Improbability Argument
[237] The defence contended that the MacPherson trailer was such a convivial and social hub, with so many unplanned drop-ins, that it was improbable that Mr. MacPherson would have the opportunity to commit the offence as M.K.H. alleged and as regularly as she alleged.
[238] In the defence’s submission there were just too many eyes, too many people and simply no opportunity for M.K.H.’s allegations to have happened. The whole story that she told was just too improbable to credit and in any event so improbable that the court ought to have a reasonable doubt about Mr. MacPherson’s guilt.
[239] I do not have any such doubt.
[240] Mr. Neuberger conceded that he could not argue that there was never any opportunity. Further, I agree with the Crown that the picture attempted to be painted by the defence evidence was overstated.
[241] This trailer park was not a gulag or prison. Each family had their own lives. That the park was sociable is clearly true, but no one purports to have kept a record of the comings and goings of Mr. MacPherson or of M.K.H.
[242] The adult witnesses, other than Mr. MacPherson, are recalling events from about seven years ago when they had no cause or reason to pay attention to those events. However, it is clear from the evidence that seeing M.K.H. with Mr. MacPherson alone, on his golf cart or at his trailer, was not a memorable or noteworthy event.
[243] Mr. MacPherson’s concessions in cross-examination, set out at paragraph [105] above, demonstrate ample opportunity to commit the offences. Moreover, his evidence that over the 17 or 18 years that they had a trailer at the park his wife left their trailer to go somewhere in the park without him on only one or two occasions does not bear credit. It is another exaggeration that makes weight against his credibility.
[244] Likewise, Mr. Myers testified that Mr. MacPherson usually preceded his wife to the park by an hour or two. Once again, that evidence demonstrates another area of ample opportunity that was available to Mr. MacPherson.
[245] More importantly, as I have noted earlier, Mr. Myers agreed that prior to being told of the allegations he had no reason to track the movements of M.K.H., that she was just another child in the park who may have come to Mr. MacPherson’s trailer in a group with others or on her own. He candidly testified he agreed that he could not say for certain whether he ever saw M.K.H. in Mr. MacPherson’s trailer or not. Additionally, Mr. Myers said that he enjoyed cooking and he acknowledged that his BBQ was not within eyesight of the MacPherson trailer. Finally, he said he would never do more than “pop his head in” without being invited further into the MacPherson trailer.
[246] Likewise, I harbour no reasonable doubt about Mr. MacPherson’s guilt based upon the evidence of his wife, Gail. She admitted that she would visit her sister at least once a day. When asked how far away her sister’s trailer was, she was flummoxed and said she was not a “math person”.
[247] While she said that she could see her sister’s trailer from her trailer, what part of it could be seen and from what vantage point was never identified. Moreover, while she said that it would only takes “seconds” to walk from one trailer to the other, in light of Mrs. MacPherson’s lack of facility with measurements and her other lack of secure recollection of details, I am not left in a state of doubt by her evidence.
[248] Mrs. MacPherson was a pleasant but unimpressive witness. Her evidence that she regularly came to the park at the same time as her husband was inconsistent with Mr. Myers’ evidence (and with her husband’s evidence on that point). Mr. Myers was the more credible witness. It is clear to me that in many instances Mrs. MacPherson’s evidence was mannered in support of her husband’s denials of guilt.
[249] One further comment. Mr. Neuberger submitted that since drop-in guests were a common occurrence at the MacPherson trailer, it was improbable that Mr. MacPherson would ask M.K.H. to “do it” while they were on his golf cart and away from the trailer because he could not know if they would be alone when they arrived. While I understand the point, M.K.H. was never asked if that had ever happened and if so, what occurred when they got to the trailer after he made such a request while away from the trailer.
Credibility Assessments
[250] In R. v. R.G., 2021 ONCA 800, the Court of Appeal had occasion to reflect on the assessment of credibility by a trial judge in the context of an appeal from conviction in a sexual assault case where the evidence of the parties was in stark conflict. In rejecting the appellant’s complaints about the way in which the trial judge dealt with his assessment of the credibility of the parties the Court of Appeal quoted from R. v. G.F., 2021 SCC 2020, as follows:
…While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.
Why I Accept and Believe M.K.H.’s Evidence
[251] I am of the view that M.K.H. is naïve and unsophisticated or at least somewhat immature. While she is a young person and not a child, she testified in an open and somewhat child-like manner. I have taken that assessment into account in assessing her credibility and reliability, as I am obliged to do. As the Supreme Court said in R. v. W. (R.) (2000), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.) at [144]: “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.” One of several examples of that naivety or immaturity can be seen in her statement, (at age 13, in April of 2022), that “I didn’t know what it was at the time. Now, I obviously somewhat do ‘cause I’m getting to that age. …”
[252] Her evidence was powerful, compelling and believable. The detail that she provided gives a clear picture of what occurred. She was not contradicted on her description of the bedroom or the pillows on the bed or the other furnishings in the room. While Mrs. MacPherson said she kept her creams in the bathroom, a lotion container is easily portable.
[253] In addition to her description of the room where this abuse occurred her description of how it occurred is equally compelling. She sat on the bed and Mr. MacPherson dropped his pants and underwear to his ankles but did not step out of them. Moreover, her description of his style of underwear was not contradicted.
[254] Likewise, her description of rubbing his penis with lotion, using two hands at his request, (recalling that she was seven going on eight), and her description of him becoming erect but never ejaculating is very credible.
[255] It is clear to me that M.K.H. was not a sophisticated child who appreciated the wrongness of what was she was asked to and did do for Mr. MacPherson. As a 13-year-old, when she was being interviewed by Lewis, she was only just realizing why he asked her to do this to him – because it made feel good.
[256] It is that lack of sophistication that plays a part in her failure to appreciate the inconsistency in her narrative. A more subtle thinker, even a young teenager, would have seen the obvious inconsistency that Mr. Neuberger developed during his cross-examination of her. But I do not find that she was intentionally lying. She clearly did not appreciate the inconsistency that counsel had developed.
[257] It may help to understand my assessment of M.K.H.’s evidence by returning to what she said about frequency during her police interview. During that interview, the subject of how frequently these incidents occurred was referred to on two occasions.
[258] First, M.K.H. volunteered the information recounted above at paragraph [38]:
[38] She said, “Um, I can’t remember how it came upon, but he just – he would ask me to do it and at the time I was so young I didn’t know what it was, and I didn’t know it was bad or anything like that and – so from then on, I – like, he would just ask me to do it. Like maybe like once a weekend or something like that.”
[259] “Like maybe once a weekend or something like that.” That is what she told Lewis about the frequency of these incidents before any suggestions were put to her by Mr. Neuberger in cross-examination.
[260] The other time when she spoke to the frequency of these incidents was during the following question and answer initiated by Lewis:
Q: How many times do you think that happened in the room in the trailer, if you had to guess?
A: I would say basically that whole summer when I was there maybe – say if I was there – depends on how many days I was there. If it was just a weekend, usually once, maybe twice in one weekend, but if it was longer than that, it would’ve happened more that that.
[261] “Usually once, maybe twice in one weekend.” This was her answer when asked to “guess” as to how many times these acts happened.
[262] Clearly, M.K.H. said contradictory things. She said that she was with Emma all day long. On that evidence there was no opportunity for Mr. MacPherson to have gotten her alone during the days when Emma and she were playing based upon M.K.H.’s evidence.[^26] She also said, in cross-examination, that it happened at least once each weekend of the summer. The two versions are self-evidently contradictory.
[263] Having set up and cemented that contradiction Mr. Neuberger challenged M.K.H. about it but M.K.H. insisted these incidents occurred.
Q: …And so on the occasions that S.S. was up there, this never happened, this abuse never happened, correct?
A: If I wasn’t with her, it would’ve happened that weekend. Like when – if I wasn’t with her at a certain time that day.
Q: You don’t really have a memory, you’re just guessing, right?
A: For the most part, yes.
Q: And when Emma was up for those four or five weekends for July and August of 2016, you spent with her, so on those occasions, the abuse never happened correct?
A: I know one for sure when she was up there it did happen. The other times, I’m not 100 percent.
Q: And – and the one time that you say that she was up there that it did happen, what were the circumstances? Do you have any recollection?
A: It would’ve been me and Stu only at the trailer, everybody ese would have been at his daughter’s trailer.
Q: Everybody else. And – and do you remember what time of day that was?
A: I would say after lunch, before dinner.
Q: To be fair, you don’t have a specific recollection of that day?
A: Yes.
Q: So you’re agreeing with me, is that correct?
A: Yes.
Q: And your memories of the occasions when you say this happened are really quite spotty, isn’t that fair?
A: Certain times, I know – I know more than others, but I know it did happen majority of that summer.
Q: You have – you have memories of it happening on every single weekend?
A: Not every single weekend, but I do remember it happening.
The Court: Wait, Wait. “No, I don’t think that’s incorrect”? Do you agree with the suggestion or do you think that it did happen every weekend, despite the things you’ve told me?
A: This isn’t 100 percent answer, but I’m pretty sure it happened every weekend.
Q: You’re saying on every single Saturday and Sunday of July and August of 2016, you always went into his trailer at least once during the weekend, Saturday and Sunday?
A: Yes.
Q: Okay. What I’m suggesting to you is that the times Emma were up, so you said one time it did happened, so on the other four times, three or four times that she came up to the trailer, those weekends, nothing happened with Mr. MacPherson, correct?
A: I don’t remember if anything happened those weekends or not.
Q: So what I was asking you was, when you said this happened every weekend of the summer, once or twice, that was not accurate, correct?
A: Yes.
Q: You don’t really have a recollection of this happening in July and August on any occasion of 2016, correct?
A: No.
[264] When pressed M.K.H. was prepared to agree that her recollection of the frequency of these incidents was uncertain but she never resiled from her evidence that she did, at Mr. MacPherson’s instigation, masturbate him.
[265] I do not accept Mr. Neuberger’s submission that M.K.H. was making up evidence to justify something that was not justifiable, as he put it. He submitted that M.K.H. was making up evidence or perhaps a better characterization would be confabulating. I don’t see her evidence that way. When she said ‘if I wasn’t with [a playmate] then it would have happened’ all she was saying is that Mr. MacPherson only took advantage of her when he was able to do so.
[266] In sum on this point, I am of the view that M.K.H.’s evidence is that:
- she was certain an incident occurred on one occasion when she had a playmate at the park;
- she was uncertain whether it happened on other occasions when she had a playmate at the park;
- she was not certain that it happened every single weekend of that summer but that these events happened for most of the weekends of that summer.
[267] The major contradiction in M.K.H.’s evidence - the issue of frequency - is a contradiction on a peripheral matter as she recounted events from half of her lifetime ago.
[268] Despite this passing of time, she recalled that the events happened at the “old” MacPherson trailer, and she was correct in her memory of that trailer. It was the trailer the MacPhersons owned the summer M.K.H. turned eight. As I’ve noted, no challenge was raised to her description of the bedroom where these events occurred. As well, no challenge was mounted to her availability to him or his access to her other than the plausibility argument that I have rejected.
[269] While M.K.H. was almost certainly wrong about the frequency of these acts of masturbation, she did not otherwise exaggerate how long the events took or engage in any gilding of the lily. That lack of exaggeration does not make weight in support of her credibility, but I note its absence as being the absence of a detractor from her credibility.
[270] While M.K.H. was wrong about frequency, she was candid and forthcoming otherwise. For example, she agreed that Mr. MacPherson played bocce ball out front of his trailer and that he spent time with his wife on the weekends throughout the summer and that he hung out with friends. She said, “Yes”, to all of that.[^27] However, she never wavered from her evidence that when Mr. MacPherson had her masturbate him, they were always alone.[^28]
[271] M.K.H.’s ability to know the names of the people and their familial relationships speaks to her level of awareness. Despite that basic level of awareness, M.K.H. was, an unsophisticated young woman, although at age 13 she was beginning to obtain some awareness of sex because as she said, “cause I’m getting to that age.” But she was still quite immature about sex since when she spoke with Lewis in April of 2022, she told Lewis:
A: … what it means now I actually – I just learned what it was a few weeks ago ‘cause I didn’t know what I was fully still doing, but then I figured out what it had meant what he was actually getting me to do and why he was getting me to do.
[272] Unlike the complainant in R. v. D.D., [2022] O.J. No. 5033 (C.A.), M.K.H. was still somewhat immature when she spoke to Lewis and one can see the realization forming in her mind of what had gone on and why it was wrong.
[273] That immaturity or lack of appreciation for the significance of what Mr. MacPherson had her do is evidenced by her main concern, that her parents would be mad at her.[^29]
[274] She rejected Mr. Neuberger’s suggestion that she, for some reason had an incorrect memory about Stu doing this to her and she rejected his suggestion that she was mixing up her memory with something else.[^30] Further, she rejected his final suggestion that she was just making this up.
[275] I am alert to and alive to the consequences of my decision. In arriving at findings of guilt for the reasons that I have tried to explain I have not ignored or forgotten Justice Molloy’s urgent reminder in R. v. Nyznik, 2017 ONSC 4392 at paragraphs [15] to [17] to uphold the burden of proof and avoid wrongful convictions:[^31]
[15] Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.
[16] It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eyewitnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.
[17] Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.
[276] I find Stuart MacPherson guilty of both charges.
Dated at Cayuga, Ontario, this 6th day of September 2023
J.S. Nadel (OCJ)
[^1]: On occasion I may refer to this trailer park simply as “the park”.
[^2]: These exhibits are cellphone photographs. While both the Crown and the defence agreed the photographs were taken in the summer of 2016, neither the specific date nor any other metadata embedded in them was introduced.
[^3]: From the bottom of page 6 to the top of page 61 of the transcript of that interview, which was filed as a lettered exhibit to supplement a recording of her interview which was filed as a numbered exhibit, pursuant to s. 715.1 of the Criminal Code.
[^4]: A photograph of this trailer, which the MacPhersons used in the summer of 2016, was filed as Exhibit 3. The new MacPherson trailer is on the same site.
[^5]: Q:…you would typically be going up to the trailer park when school had finished, is that fair?
A: I would’ve been going up right from when it opened, which would have been near the end of school time.
Q: I think for all our benefit, I think that park opened up some time in April and closed down in October of every season, do you remember that?
A: Yes.
Q: Okay. Regardless, the time that you were commonly up there was over the summer break, when you were not in school, is that correct?
A: Yes.
[^6]: This was a misstatement of M.K.H.’s evidence that I did not catch and correct.
[^7]: This suggestion, “and it was in your interview, that this happened every single weekend of the summer, of 2016” was not a precise re-statement of M.K.H.’s police interview. Regrettably, I did not catch and correct the question. As noted earlier in these reasons at paragraphs [38] and [70] M.K.H. told Lewis that Mr. MacPherson would ask her to masturbate him “[l]ike maybe once a weekend or something like that” and she guessed that it happened “usually once, maybe twice in one weekend.”
[^8]: As this was a trial in the Ontario Court of Justice, I directed that a copy of the details of that prior criminal record be filed as Exhibit 4.
[^9]: The emboldened heading used in this part have been added by me. They do not appear in Mr. Neuberger’s written submissions.
[^10]: See R. v. J. (D.), [2021] ONSC 1300 (Quigley J.) at para. [111]:
111 That said, I also accept defence counsel's observation that there is a difference between arguing that a complainant would have or should have behaved in a certain way based on a comparison to an imaginary "real" victim, as opposed to talking about the plausibility of how this particular person behaved in the actual circumstances described. Assessing the coherency of a narrative based on testimony provided by the complainant herself and other evidence regarding the actual sequence of events or circumstances is a proper consideration when evaluating testimony. Stereotypes become a concern only when conclusions are not grounded in the evidence. (footnote omitted)
[^11]: This submission by Mr. Neuberger is consistent with a comment made by Cromwell J. as paragraph [39] of R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paragraph [39] where he noted that a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond a reasonable doubt.
[^12]: The Supreme Court of Canada dismissed J.J.R.D.’s application for leave to appeal the decision reported at 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), where the Court upheld his conviction for sexual assault. While the appeal was ostensibly based on a complaint of insufficient reasons for conviction having been provided by the trial judge, the case is noteworthy for the proposition contained at paragraph [53] that “[a]n outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of 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.”
[^13]: See paragraph [46] above:
[46] M.K.H. said that each of these occurrences lasted for about the same amount of time which she estimated to be seven minutes. In direct examination she said that these episodes ended when she didn’t want to do it anymore, however, in cross-examination when asked how these incidents would end, M.K.H. said, “I don’t fully remember that.”
[^14]: Respectfully, this observation is not a matter of substance or relevance. M.K.H. did not control Lewis’ interrogation of her.
[^15]: Mr. Neuberger acknowledged that M.K.H. was young when she said these events occurred and that she was not sophisticated when she testified, (a fact that he considered in his manner with her), but he stressed that her age does not reduce the onus or burden of proof on the Crown. He maintains inconsistencies in her evidence preclude the Crown from meeting its burden.
[^16]: 25 … Factors which may have a decisive effect on the reliability of the evidence of an adult witness -- for example, material inconsistencies in details as to time and place -- may play a significantly lesser role in assessing the reliability of the evidence of a child witness. That is not to say that the child's evidence is subject to a less rigorous standard of assessment before it can be accepted in a criminal trial. Rather, it is to say that the assessment of the credibility and the reliability of any witness is to be tailored to the individual characteristics of the witness. Where the witness is a young child, age is one of those individual characteristics: R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at pp. 133-34.
[^17]: 11 Upon summarizing the fresh evidence led by the defence, the trial judge concluded that the accused's work schedule left substantial opportunity for him to access the complainant during his time off. In light of the fresh evidence, he found the complainant's evidence as to the frequency and duration of the incidents unreliable. However, he also found that the frailties in the complainant's evidence were explicable as the natural distortion that occurs when events from childhood are recounted at an older age. He found, moreover, that the frequency and duration of the incidents were secondary to the main issue as to whether the abuse in fact took place. The trial judge dealt with some discrepancies in the complainant's evidence as to the time a particular incident occurred, and concluded that the time was ancillary to the issue of whether the event actually happened. He concluded that in general the accused was not credible and was prone to exaggeration. The trial judge also found the accused's offer of a motive for why the complainant might fabricate her allegations "defie[d] all logic". He concluded, for the second time, that no reasonable doubt had been raised as to whether the accused had committed the four offences.
14 The trial judge had to determine whether the evidence as a whole proved the allegations beyond a reasonable doubt. This issue turned largely on the trial judge's findings with respect to the credibility of the complainant and the accused. It is clear from the trial judge's reasons for judgment that his verdict resulted from his acceptance of the complainant's evidence as to whether the incidents occurred, from his rejection of the accused's defence of lack of opportunity from his finding that the accused was not a credible witness and that the evidence as a whole did not leave him with a reasonable doubt. It is also clear that the trial judge found the frailties in the complainant's evidence to be an understandable result of trying to remember events that happened in childhood and were, in any case, related to peripheral, not core, issues.
15 The trial judge explained his view of why any errors in the complainant's testimony did not undermine her credibility as to the central issue of whether the offences were committed; he said that much of the testimony was unchallenged, that the inconsistencies and contradictions in her testimony [page40] were related to peripheral matters and that frailties in her testimony were attributable to the difficulty of recalling childhood events. It is thus reasonable to infer from the reasons that, despite any errors in the complainant's testimony, there remained a body of credible evidence capable of proving the offences beyond a reasonable doubt. The trial judge's reasons thus explain the basis for the verdict reached. In meeting this standard, the trial judge's reasons fulfilled their purposes. That being so, the Court of Appeal was not entitled to substitute its own view of the complainant's credibility (specifically, its concerns about her credibility being capable of raising a reasonable doubt) in the guise of impugning the sufficiency of the reasons.
[^18]: Again, the headings, other than the ones from the Crown’s Index, are mine.
[^19]: 1991 93 (SCC), [1991] 1 S.C.R. 742, per Cory J. at [28]. The paragraph is iconic and need not be needlessly reproduced.
[^20]: A similar argument could be made that Mr. MacPherson exaggerated the number of times his granddaughter came to the park during the summer of 2016.
[^21]: I undertook a modest review of s. 152 in R. v. Pellerin, [2011] O.J. No. 1623 at paragraph [22] et seq.
[^22]: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at paragraph [33] provides a foundational discussion of the concepts of credibility and reliability and their relationship:
33 Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable.
[^23]: A Self-charge on the Presumption of Innocence & the Onus & Burden of Proof
[i] This is a criminal prosecution. The onus of proof lies solely on the Crown to prove the guilt of the accused to the requisite degree. That burden is proof of guilt to the exclusion of any reasonable doubt. This onus of proof never shifts from the Crown to the defence. There is no burden on the accused to prove anything. Mr. MacPherson is presumed innocent, and he is entitled to the benefit of that presumption of innocence unless and until that presumption of innocence is displaced by admissible evidence that proves his guilt to the exclusion of any reasonable doubt.
A Self-charge to Avoid a Forbidden Line of Reasoning
[ii] In R. v. Y.M., 2004 39045 (ON CA), [2004] O.J. No. 2001 (C.A.) Laskin J.A. identified an erroneous approach to cases, like this one, where the credibility of the witnesses is starkly conflicted. That erroneous approach to the evidence and to the law causes a judge to follow a forbidden line of reasoning that fails to honour and properly apply the onus and burden of proof. In Y.M. the Court of Appeal found that the trial judge may have treated the matter like a credibility contest and rejected the accused’s evidence merely because he preferred and accepted the complainant’s evidence.
[iii] Justice Laskin went on to explain that this reasoning is forbidden because it shifts the burden of proof onto the accused to explain away the complainant's evidence. I charge myself not to follow that forbidden path here.
[iv] Appellate courts demand that trial judges show they have considered W.(D.)'s middle ground; namely, whether the defence evidence in the context of the evidence as a whole leaves the trier of fact with a reasonable doubt. The law does not require the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W.(D.) at p. 743, the trier of fact must acquit even if they do not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".
[v] Accordingly, I instruct myself to avoiding that forbidden line of reasoning. I shall not approach this case by saying to myself, as the trier of fact, that if I accept the evidence of the complainant, I must therefore reject the evidence of the defendant. This forbidden line of reasoning fails to honour the presumption of innocence and the burden of proof and insidiously shifts the burden of proof onto the defendant to explain away the complainant’s evidence.
[vi] On the other hand, I am not to require the prosecutor to meet an unlawful burden that demands corroboration where the law does not require it. I charge myself in accordance with the governing principles as set out above and with the principles explained in R. v. Jaura, [2006] O.J. No. 4157 (O.C.J.) and R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), and R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 (C.A.) and many other cases.
[vii] At paragraph [5] of Hull, the Court of Appeal clarified and to some extent thereby rationalized the Y.M. principle with Jaura and J.J.R.D. in the following words:
W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
[viii] I am also mindful of the need for care and caution where the case for the Crown is carried substantially by one witness.
[^24]: There is a third observation of some interest but no significance in Mr. MacPherson’s evidence. I have listened to the digital recording of the evidence closely when writing these reasons. At the point where Mr. Neuberger first asks Mr. MacPherson how long he has had a trailer in the trailer park Mr. MacPherson says, essentially to himself and too softly to be heard absent earphones, “oh shit … 2005? 19 years ago.”
[^25]: When asked by Mr. Neuberger to estimate how many times Emma came to the trailer park each summer in 2016 and 2017 Mr. MacPherson said that she came up 15 times. When asked if that number was for both summers he answered, “Ah, maybe 20 times for both”, and ultimately testified that Emma came up every second or third weekend.
[^26]: Interestingly, Mrs. MacPherson, Emma’s grandmother, said that Emma and M.K.H. would play together for a few hours before separating and coming back and getting together again.
[^27]: Q: … so the area where Stu’s trailer was, was throughout the day a very, very busy area, do you with that?
A: Yes.
Q: So to be fair, from early in the morning until, you know, sundown, the particular area where Stu’s trailer was had lots of people going to and from and hanging out throughout the day, is that fair?
A: Yes.
[^28]: Q: Are you saying in the summer of 2016 that Gail was absent for a weekend?
A: Sometimes for the weekend, but other times it was just that she wasn’t up there for the full weekend. She’d only be up thee for like half of it.
Q. Okay. And – and why do you have that particular memory?
A: Cause when he would get me to do for him, it was only ever me and him in the trailer. Nobody else was at the trailer or outside of the trailer at the time.
[^29]: See paragraphs [77] and [78] above:
“My main concern – this is the main reason why I never told anybody – I was afraid that people were gonna get mad at me or judge me ‘cause I – at the time, like, I didn’t know it was bad or wrong, but then at the same like it – like afterward it was more s-, it felt more – so wrong and then I – like that – like I was afraid to tell my parents ‘cause I feel like they would get mad at me.” …
“No, he wasn’t a s – he’s not a scary guy. It’s just my main concern, like I was always afraid that he was gonna tell someone but I didn’t know about that. My mom told me like when I told her that, he would ne-, never have told anybody. That was my main concern, I was also afraid of that ‘cause I found it embarrassing and I – like I said, I though my parent would get mad at me.”
[^30]: Mr. Neuberger made the suggestion in more than one way and these versions did not transgress s. 276.
[^31]: Additionally, I have considered the useful review of some of the applicable law set out by Justice J.R. McCarthy in R. v. J.R., [2023] O.J. No. 2572:
The Relevant Law
14 The Accused is presumed innocent until the Crown proves the offences beyond a reasonable doubt. The Accused, who did not testify, is not under an obligation to prove anything in this case.
15 At trial, the Crown's case rested almost exclusively on the credibility and reliability of the Complainant and K.F.
16 The Supreme Court of Canada has characterized the assessment of credibility as "a difficult and delicate matter that does not always lend itself to precise and complete verbalization": see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49. With this in mind, the following are some of the factors this Court can consider in assessing credibility:
a. inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses: see Re: Novak Estate, 2008 NSSC 283, 269 N.S.R. (2d) 84 (S.C.), at para. 36;
b. independent evidence that confirms or contradicts the witness' testimony: see Novak, at para. 36;
c. the harmony of the testimony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions, without relying on false or frail assumptions about human behaviour: see Faryna v. Chorney, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A) at p. 357;
d. whether the testimony was provided in a candid and straight forward manner, as compared to an evasive, exaggerated, or strategic manner: see R v. T.A., 2018 ONSC 1423, at paras. 244, 249; R. v. Kiss, 2018 ONCA 184, at para 52;
e. the demeanor of the witness, but with caution: see R. v. Panchal, 2022 ONCA 309, at paras. 24-25.
17 While considering the above factors, this Court is alive to the fact that there is "no inviolable rule on how people who are victims of trauma like a sexual assault will behave": R. v A.R.D., 2017 ABCA 237, 353 C.C.C. (3d) 1, at para. 64. "Judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning": A.R.D., at para. 60.