WARNING

The presiding judge directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

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

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

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

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

CITATION: R v REL, 2013 ONSC 7512

COURT FILE NO.: 12-70000829-0000

DATE: 20131206

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Corie Langdon, counsel for the Crown

• and -

R.E.L.

Christopher Avery, counsel for R.E.L.

HEARD: July 23-26, 29, 31 and

August 1, 2013

REASONS FOR JUDGMENT

MICHAEL G. QUIGLEY J.

Overview

[1] R.E.L. is charged with (i) indecent assault, sexual assault with a person under 14 years of age and gross indecency against K.J., (ii) sexual assault and gross indecency against a person under 14 against L. “L.” B., and (iii) gross indecency against M.Y.. The charges are all historical. When the complainants knew him, the accused went under his adopted name of A.T.. He has now reverted to his birth name of R.E.L.. He is second cousin once removed of M.Y. and the uncle of K.J..

[2] These sexual assaults are alleged to have been committed many years ago during separate visits with the accused when the three separate complainants were between the ages of 5 to 14, during three separate time periods. They relate to the period between 1982 and 1987 in the case of K.J., September 1998, to November 1990, in the case of L.B., and 1969 to 1979 in the case of M.Y.. R.E.L. was also charged with possession of child pornography for the purposes of publication in the form of an obscene picture of K.J. as a child engaged in sexual activity.

[3] R.E.L. pleaded not guilty to all of the charges. The sole witnesses for the Crown were the three complainants, M.Y., K.J. and L.B.. R.E.L., testified in his own defence.

[4] This case is all about the reliability of the evidence of the two remaining complainants about what happened so many years ago. The evidence of honest and credible witnesses can nevertheless be unreliable in determining whether the Crown has proven the charges beyond a reasonable doubt.

[5] For the reasons that follow, I have found R.E.L. guilty of the charge of gross indecency relative to M.Y.. However, I have concluded that it would be unsafe under our law to convict R.E.L. of the sexual assault charge relative to K.J. owing to issues relating to the reliability of his evidence. R.E.L. is acquitted on that charge.

Directed Verdict on L.B. Charges

[6] The sexual assault and gross indecency perpetrated against L. “L.” B. by R.E.L. were alleged to have occurred between September 1, 1988, and November 25, 1990.

[7] However, I have found that the offence of gross indecency ought to be withdrawn as void ab initio. Since that offence was repealed by Parliament effective January 1, 1988, plainly, it cannot be the foundation for a proper charge for offences alleged to have taken place after that date. Accordingly, the charge of gross indecency against R.E.L. relative to L.B. must be quashed. Counsel agree with that determination.

[8] The Crown also acknowledges that L.B.’s evidence raised uncertainty whether the sexual acts alleged took place before or after he turned 14 years of age. That was the legal age of consent at that time. L.B.’s evidence raised at least the possibility, if not the inference, of implied consent to the acts that took place between them. That obvious inference from the evidence, combined with the uncertainty whether the acts complained of took place before or after L.B. turned 14 rendered it unlikely, if not impossible, for the Crown to prove the elements of those offences relative to L.B. beyond a reasonable doubt.

[9] As such, I granted a directed verdict of acquittal with respect to the second charge laid against R.E.L. relative to L.B.. Following these rulings, only the charges relative to M.Y. and Mr. K.J. remain to be addressed.

[10] Finally, while there was evidence of R.E.L. having taken nude photographs of both K.J. and M.Y., there was no evidence confirming that R.E.L. ever had possession of such photographs of K.J. for the purposes of distribution, publication or circulation and as such, a directed verdict of acquittal was also entered with the Crown’s consent on count 4.

Similar Fact Application

[11] The Crown gave notice of an application to admit evidence of discreditable conduct of R.E.L., as similar fact evidence on a count-to-count basis. The Crown sought to admit the evidence of M.Y., K.J. and L.B. as evidence of his discreditable conduct (or similar fact evidence) in order to (i) demonstrate a pattern of behaviour, namely, that the accused has a situation specific propensity to sexually abuse young males; (ii) to negate a defence that the complainants are fabricating, and (iii) to support the account of each of the complainants with the evidence of the other two based on claimed similarities in the sexual abuse allegedly perpetrated by R.E.L..

[12] I ruled in favour of the Crown’s application to introduce the similar fact evidence on a count-to-count basis. In light of the quashing and directed verdict, L.B.’s evidence is no longer relevant to that application. That leaves the similar fact evidence ruling in place only relative to the charges against R.E.L. relating to M.Y. and K.J..

[13] Applying the methodology mandated by R. v. Handy,[^1] I found the similar fact evidence to be admissible at R.E.L.'s trial on a count-to-count basis to demonstrate a pattern of behaviour relative to the two remaining complainants. My reasons for that ruling are reported at 2013 ONSC 6292.

[14] The governing authorities show that similar fact evidence is also admissible to negate a defence of fabrication and to support the credibility of the complainants’ testimony. It may be taken into account in considering the credibility and reliability of their evidence. It is properly admissible to support their accounts of the sexual abuse committed by the accused. However, I have reminded myself that the mere admission of similar fact evidence cannot become a substitute for meeting the onus that remains on the Crown throughout this trial, as in every criminal trial, to prove the offences beyond a reasonable doubt.

Summary of the Evidence

[15] The complainant M.Y. claims that he was repeatedly sexually abused and effectively forced to engage in fondling, fellatio, and other sexual conduct with the accused on numerous occasions and in numerous locations, including in a condominium in Florida, in the showers and toilets at Sibbald’s Point campground northeast of Toronto, in the basement at his grandparents’ house at B[…] Drive in Scarborough, at the house where the accused lived with his parents, the great aunt and uncle of the complainant, at P[…] Road in Toronto, and at the C[…] located on the 401 in Scarborough. He says he was between the ages of 5 and 14 when this abuse took place. That correlates with the time period between 1969 and 1979. The acts complained of by M.Y. included at least one successful, albeit brief but painful act of anal intercourse. A more detailed review of M.Y.’s evidence will be found at paragraphs 5-25 of the similar fact evidence ruling.

[16] In the case of the complainant K.J., he claims that he was repeatedly sexually abused by the accused between the ages of 10 and 14 years, commencing with sexual abuse in his grandparents’ trailer in Florida, continuing with abuse at the accused's residence in the basement of the house at P[…] Road, and that only ended when he was 14 when he allegedly defecated in his pants as a sort of desperate “end of the road” tactic to keep the accused away from him, and from continually pulling down his pants and fondling his genitals, and performing fellatio.

[17] As in the case of M.Y., there was a claim that the accused had made an effort at anal intercourse with K.J., but that the pain experienced by K.J. appears to have prevented the accused from completely inserting his penis in K.J.’s rectum. M.Y. claims the accused did have anal intercourse with him. A more detailed review of K.J.’s evidence will be found at paragraphs 26-38 of the similar fact evidence ruling.

[18] Both complainants testified that the accused had a Polaroid camera and took pictures of their genitals when they were naked and then showed them those photographs, and that he kept those photos for his own amusement. M.Y. said it was Polaroid because he could see the photograph coming out from the front of the camera as was typical with that now dated technology. He said the accused took pictures of him when he was 10 and then again when he was 11 or 12 at the P[…] Road residence. K.J. also claimed that the accused took pictures of him. K.J. recalled that the body of the camera was white. Both testified of having effectively been groomed for further sexual activity and exploits by being shown pornographic magazines and movies, reel-to-reel and later, VHS movies.

[19] The accused testified in his defence. He says these events never occurred. He denies ever having any sexual relations with either of the complainants. He denied each and every specific action of sexual abuse that was put to him. Indeed he finished his own evidence with an allegation that came out of the blue that he himself, i.e. R.E.L. himself, was a victim of sexual abuse at the hands of his uncle W.F., who he believed and seemed to suggest may have also sexually abused his brother Dan and others. That surprising revelation was left dangling at the end of the evidence.

Analytical Framework

[20] The question in these proceedings was whether the events as described by the complainants took place. The parties agree that there are two main charges in play: (i) sexual assault against K.J. between 1972 and 1982 when he was under 14 years of age and (ii) gross indecency against M.Y. between 1969 and 1979. The Crown must prove the elements of one or more of the offences beyond a reasonable doubt, and I am required to apply the methodology of analysis mandated by the Supreme Court of Canada in R. v. W. (D.)[^2] to the whole of the evidence in determining that question.

[21] M.Y. and K.J. claim that the sexual assaults and activities that they described took place. However, R.E.L. testified that the events on which the complainants gave evidence never took place. There was some considerable overlap and concurrence in various details of their evidence and there were some acknowledged common occasions where at each of the complainants and the accused were present at the same time. Nonetheless, the accused denies each and every accusation that was put to him relative to each of the specific incidents of sexual abuse that was described by these two complainants. Stated simply, he says they never happened.

[22] The methodology in W.(D.) focuses on credibility. Under that test, if I believe the evidence of the accused that he did not commit the offences with which he is charged, then I must find him not guilty. However, even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt or about the presence of an essential element of one or more of the offences charged, then again he must be found not guilty of the offence. Finally, even if R.E.L.’s evidence does not leave me with a reasonable doubt of his guilt, or respecting an essential element of the offences charged, I may convict him only if the rest of the evidence that I do accept proves him guilty of an offence beyond a reasonable doubt. The burden of proof to establish the elements of the offences beyond a reasonable doubt lies solely upon the Crown. To meet that standard requires that I be sure that the events the complainants described actually happened.

[23] I am also required to consider the evidence in totality and as a whole. I am entitled to accept some, all or none of the witnesses’ evidence. Let me say now that my failure to avert to any specific evidence of one of the witnesses does not mean that I have not considered that evidence in coming to my conclusions. I have also reminded myself that I am not permitted to merely choose between two competing versions of events presented by a complainant and the accused. I am required to consider the whole of the evidence in this case such, as all three, and in particular the third test in the W (D.) formula demands.

[24] However, there are three further legal issues that I would specifically identify as being relevant to the analysis of the evidence and that must be considered in this case and that I have endeavoured to bear firmly in mind. The first is the issue of reliability of the evidence, especially in historical cases like this where in spite of the complainant’s evidence being credible it may suffer from a lack of reliability.

[25] Second, a balancing is required of the standard by which we evaluate the evidence of witnesses that relates to a period of time when they were children even though they are adults when they testify.

[26] Finally, as is explained below, I have reminded myself that the burden of proof cannot be permitted to effectively be reversed in any way, or to impose any evidential burden on the accused as a result of an absence of evidence of collusion or other lack of evidence.

[27] The first and most important of these issues relates to the frailty of the memory of witnesses. It is relevant in this case, where it is not only the credibility of the complainants that must be evaluated, but equally, the reliability of their evidence, given that the alleged events occurred three to four decades ago. The recent and leading case is R. v. Sanichar,[^3] where the Supreme Court allowed the appeal and restored the convictions that were set aside by the majority of our Court of Appeal.[^4]

[28] In that case, the Newbould J. convicted the accused of several charges involving physical and sexual abuse. As in this case, the offences were historical. Blair J. wrote for the majority. The focus of his reasons were issues relating to reliability, and in overturning the convictions and ordering a new trial, he held that the trial judge was required to self-instruct on the dangers of convicting because the complainant’s evidence related to events from the distant past, suffered from various frailties, and stood alone where confirmatory evidence might reasonably have been expected to exist. On that basis, the majority concluded that the trial judge’s failure to self-instruct constituted legal error. Laskin J.A. dissented. The Crown appealed the majority’s decision and the accused brought a motion to quash the appeal.

[29] At the Supreme Court, the majority agreed with the dissenting reasons of Laskin J.A. that it was not mandatory for the trial judge to self-instruct on those issues of reliability, but rather discretionary. However, as Fish J. pointed out in his dissenting reasons at the Supreme Court, while self-instruction on the frailty of historical evidence may not be required legally, even if it is “sensible,” to pick up the language Blair J.A. had used, what is required is that “the trial judge’s reasons should demonstrate that he or she is alert to the frailties of, and the risks associated with, such evidence, and the need to address it with that careful scrutiny,” but even then, only “[w]here…there are objective reasons to scrutinize carefully the reliability of a witness whose testimony is central to the proof of guilt.”[^5]

[30] This analysis distinguishes between credibility and reliability. It recognizes the fallibility of memory. It acknowledges that our courts recognize that it is risky to place excessive emphasis on apparent credibility and sincerity of a witness when there are contradictions and inconsistencies in their evidence.[^6] Referring to Paciocco and Steusser, The Law of Evidence,[^7] Blair J.A. noted that reliability relative to a witness’s testimony refers to factors other than honesty that can influence the accuracy of a witness’s testimony. These factors can include the ability of the witness to make the relevant observation or to recall accurately what was observed and communicate those observations with accuracy. At paragraph 38 he states as follows:

In such cases – cases involving out of allegations of distant events, including allegations involving historical acts of physical and sexual abuse – particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to be cautious about relying upon adult memories of childhood impressions in R. v. M.(B.). Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred. (citations omitted)

[31] At paragraph 43, Blair J.A. lists four factors that ought to be present in a proper reliability analysis. These include (i) the need to look for confirmatory evidence where it should have been available, particularly given inconsistencies and contradictions if they exist in a complainant’s testimony, (ii) the concern that an abundance of detail in cases involving distant events may not necessarily imply an accurate memory, (iii) the absence of evidence available to support the complainants testimony in key areas, and (iv) the simple concern that the vicissitudes and influences of life over a long period can have an impact on such things as motive and the reliability of the witness’s testimony.

[32] Nevertheless, even though caution may be required in relying on adult memories of childhood impressions, the Supreme Court’s decision in R. v. W. (R.), which is cited in Sanichar warns, as well, that we should not be unrealistic or excessively demanding where an adult testifies to events that transpired during childhood.

[33] At page 134 in W.R.,[^8] Justice McLachlin says this:

It is neither desirable nor possible to state hard and fast rules as to when a witness' 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 their mental development, understanding an 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 or 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.

[34] So, in assessing evidence given here by M.Y. and K.J. of events that transpired in childhood, we need to recognize that children do not have the same ability as adults to recall precise details accurately. Consequently, when they testify as adults about events that happened in their childhood, that same standard has to apply because they are recalling something that they would have interpreted and experienced as a child.

[35] Finally, however, relative to legal principles, I must bear in mind in assessing whether the Crown has proven its case beyond a reasonable doubt, I have reminded myself that I cannot inadvertently permit the burden of proof to be reversed. The point arose in two respects, first, relative to an allegation that M.Y. has a motive to fabricate his evidence, and secondly, relative to the issue of collusion. The point with respect to both, which I emphasize below, is that to the extent that I have found that there was no motive to fabricate on the part of M.Y., and that there was no meaningful evidence of collusion between K.J. and M.Y. that ought to cause their evidence to be regarded as incredible or unreliable for that reason alone, neither does the absence of those factors cause their evidence to become more believable or credible or more reliable.

[36] I wish to emphasize that findings of an absence of collusion and an absence of motive to fabricate do not enhance my assessment of the credibility of either of these complainants. It is simply a neutral point, neutral evidence, unlike what would be the case with a significant detraction in their credibility if a significant motive to fabricate were found to be present. Both counsel emphasized in their arguments, and I wish to emphasize that I have been mindful of this, that there is no burden whatsoever on counsel for the defence either to prove a motive to fabricate or to prove collusion between these complainants. This point also is addressed in the analysis that follows.

Principles Applied

[37] At its core, this is a case that is about the reliability of the witnesses in the context of alleged historical sexual abuse. However, that reality does not change the analytical methodology that is imposed upon me, nor does it do away with the assessment that is mandated by the Supreme Court in W.D. Since Mr. Lea testified, I must follow the three-pronged approach set out in that case. If I believe the evidence of R.E.L. or am left in a state of reasonable doubt even if I do not believe him, I must acquit. In light of the requirements of that analytical approach and the ordering of its approach, the first step in the W.D. analysis requires me to consider and determine whether I believe the testimony of the accused.

(i) Credibility of the Accused

[38] R.E.L. gave testimony over the course of a day and a half. It was remarkable in its detail, a point I noted to defence counsel. He agreed that R.E.L. provided an enormous amount of detail, and seemed to have a “borderline savant-like memory for addresses.” He was able to remember the street address of every place he has ever worked in his life and detail about the places where he worked, who he worked with what his hours were on which days, and on educational aspects of his life. R.E.L. also displayed an ability to recall minute details of seemingly unimportant events that transpired between three and four decades ago.

[39] His evidence had an astonishing level of detail to it for what one might have thought were ordinary and unmemorable events decades ago. At various times when I listened to his testimony, it struck me that R.E.L.'s evidence might well have been rehearsed, and I noted it lacked in spontaneity or real responsiveness. However, he was very precise with his testimony, correcting counsel, and indeed correcting himself, in circumstances where something was described with inadequate precision initially and where he wished to clarify an answer.

[40] Even though R.E.L. had that level of detailed recollection about those matters, R.E.L. could not recall having had any relationship of meaning with either K.J. or M.Y.. He testified, essentially, that they knew him in the same distant way as any other distant cousin level members of a large and extended family might, but not really in any kind of depth and not in any meaningful way.

[41] He acknowledged that he saw M.Y. only very infrequently on some Saturdays, However, on the very few or limited occasions when he claimed M.Y. was present at family gatherings, R.E.L. voluntarily added that he would not have much conversation with him and would not spend any time with him. R.E.L. was quite insistent that he only really spent time with the adults, not with M.Y..

[42] However, the testimony of M.Y. showed that he knew a fair amount of detail about R.E.L. that would otherwise seem to be inexplicable if there was no relationship between them. So in the context of an amazingly detailed recollection of the minutia of where he was, where he worked, with whom and when, and what transpired almost 40 years ago as reflected in R.E.L.’s evidence as a whole, there is this one gap that seems to stand out in the context of the whole of the evidence relating to family gatherings. Other members of the family were present for these family gatherings and are recalled by him, but M.Y. is not present.

[43] To my eye, that did not make sense in the context of how this family appears to have operated as a whole, based not only on R.E.L.’s evidence, but also that of the complainants. They spent very considerable amounts of time together, not only for frequent dinners on weekends and at holidays, and for frequent occasions when the grandparents went to play bingo together and left the children behind, but also when they spent time together on vacations in those days, principally in Florida. In that respect, I found that R.E.L. was not candid or forthright on these matters. He was reticent to provide detail or elaboration about factual matters that started to get close to the allegations of M.Y., or indeed K.J.. While it is not surprising that his evidence would be exculpatory, I also found it to be conveniently self-serving. Also not surprising, but more importantly, it was difficult to understand and accept relative to the extent to which both M.Y. and K.J. knew significant details about him.

[44] For example, the evidence from both complainants disclosed that R.E.L. served both of them rum-based drinks during the course of the times when he engaged in sexual conduct with them. How, one asks, could M.Y. know that R.E.L. enjoyed rum? R.E.L. acknowledged that he did bring back a bottle of Bacardi rum from a Florida trip, but then he interrupted and caught himself to quickly add that it was white rum, not dark or amber (as the complainants recalled). Then, when asked about his drink of choice, he bobbed and weaved in his efforts to avoid being associated with the evidence of the complainants by simply acknowledging that he liked rum, as just one drink amongst a full range of other alcoholic drinks including vodka and gin.

[45] This presentation impressed me as being less than candid and forthright about the simple and obvious fact that he must have enjoyed rum. He wanted to avoid giving that answer. He must have liked rum if he acknowledged that he bought a duty free bottle to bring back with him from Florida, or some other vacation, at least in the absence of evidence that it was intended for someone other than himself. Ultimately, after Crown counsel continued to prod him, R.E.L. acknowledged that he did actually like rum, but then he again quickly interrupted himself to point out that he liked other spirits as well, as I have noted. He emphasized that he also liked vodka, and tequila, and in fact, that he had created a cocktail called “Godzilla's Revenge.”

[46] These responses to the Crown’s questioning sounded like afterthoughts spoken to intentionally distance him from the testimony the complainants had given, and that he knew he had just effectively acknowledged and confirmed. However, if there was only a distant relationship between them, or an absence of any meaningful relationship or interaction as he wanted the court to believe and at a time when he was 19 to 28 and M.Y. was between 5 and 14, then one is left to wonder how M.Y. could have testified as he did to certain details that are salient. I found myself unable to understand how M.Y. could have known that rum was one of R.E.L.'s drinks of choice if there was essentially no relationship present between them and if M.Y. was under-aged during all of the time in question. M.Y. knew, he said, because R.E.L. served him rum and Coke drinks in association with the sexual conduct that progressed between them.

[47] On another point, according to R.E.L.’s evidence, M.Y. never went to P[…] Road until 1981 or 1982 when he was in his late teens or early 20s to help his father repair the roof, whereas the abuse is alleged to have occurred between 1969 and 1979, both at B[…] Drive and at P[…] Road, and elsewhere. Thus, evidence to the contrary would be supportive of M.Y.’s testimony. Having heard the testimony of the complainants about being shown movies before the sexual conduct would commence, R.E.L. testified that he was not certain about whether or not he had ever brought the movie projector to the F.’s house on B[…]Drive.

[48] If both elements of that evidence were truthful, however, then it does not seem possible that M.Y. could have known about the reel-to-reel movies that he says R.E.L. played for him, at both locations. There were movies that K.J. also knew about and claimed to have seen. M.Y. could not have known about the projection screen in the basement at P[…] Road, nor could he have known about the movies and the “briefcase” or “metal case” or “shiny box” that the reel-to-reel films were kept in, a case or storage box that was essentially acknowledged by R.E.L., even though each of the complainants and the accused described the appearance of that box with a focus on differing aspects of its description and prominent features.

[49] This creates a gap in R.E.L.’s evidence that is unexplained, that makes no sense and that seems inconsistent with what would seem to be a more logical conclusion – that M.Y. knew about those things because, as he testified, he had been to P[…] Road as a younger boy during the period of the alleged sexual conduct and because R.E.L. served him those rum drinks. He knew about the reel-to-reel movies because he saw them. He knew particular detail about the layout and features of the basement there because he had been there as a pre-teen boy as one location where the sexual conduct occurred.

[50] R.E.L. was questioned about the times from 1975 onwards after their retirement, when his adopted parents, Mr. and Mrs. T., were in Florida and he would be left behind in Toronto and staying alone at the P[…] Road residence. He was adamant in his evidence that there were no movies being watched in the basement at P[…] Road, but then when he was being questioned regarding the post-1975 period, he agreed in spite of his earlier resistance, that movies might have been watched in the basement at his home. That is demonstrative of the fact that he sought to portray his evidence in the most favourable light, given that he had heard the evidence that M.Y. and K.J., both of whom said that they had watched movies on the projector in the basement. He was initially adamant in his answers when they served to assist him, but he was pushed from those safe answers when he was asked about the opportunities he would have had to have been alone with M.Y. on weekends while the elder T.s were in Florida and when M.Y. was in his early teens.

[51] As previously noted, initially, R.E.L. was adamant that he and his family only got together with the F.s on Saturday nights. Crown counsel questioned him extensively about these evenings. Initially, R.E.L. was insistent that those gatherings took place on Saturdays, only Saturdays, and only Saturdays that he was available if he did not have a date, or when he was not alone, or on his own with his friends, frequently, and then not that frequently. But then, after extensive questioning he allowed that perhaps there were also Friday gatherings of the family when he would go and see the F.s and together they would eat the fish and chips that they apparently ordered every Friday night. However, as I heard how this evidence emerged, in contrast to the detail he provided on other subjects, he provided only a bare minimum of information on family matters and gatherings which might have provided him with the opportunity to be with M.Y., or later with K.J.. He was trying to anticipate where the Crown’s questioning was going to lead and trying to anticipate the questions before they were asked. He had to be prodded before the full picture would emerge.

[52] However, when looked at in the context of the whole of the evidence, that testimony and evidence is illogical. It does not make sense because once pressed, R.E.L. essentially acknowledged that many weekends, and those in particular on which he was questioned, were “family weekends.” They were occasions when the whole family would get together, the F.s would get together and the T.s would get together and the two families would congregate for dinners, or fish and chips and all of the F.s’ children would be present. That is all who would be present, according to R.E.L., except, conveniently, M.Y. and his parents. They were not present according to R.E.L., despite the fact that M.Y. and his siblings, his older sister K. who was three years older and his younger brother, D., five years his junior, were the only grandchildren of Mr. and Mrs. F., and with no evidence of family discord that would account for them being absent.

[53] R.E.L. tried very hard to persuade me that neither M.Y. nor his family were there for any of these family get-togethers on a regular basis over a period of almost ten years, even when the whole rest of the family would be present. However, it made no sense that “W.F.” was there and Dan and B.F. were there and the older generations were all there, but M.Y. and his family were not there. It made no sense when both R.E.L. and M.Y. testified that these events were, essentially, big family get-togethers, and R.E.L. essentially confirmed the nature of those gatherings in his evidence, even if he did not acknowledge that the M.Y. family was ever present.

[54] M.Y. talked about seeing the T.s frequently, initially three to four times a year when he was very young for family visits plus when the T.s visited the F.s and M.Y.’s parents, and when they went to hockey games, and when they went on family trips and at Christmases. He saw the T.s more when he was older, from 9 until when he was between 12 and 15. That also corresponds to the period during which the sexual relationship with R.E.L. was ongoing. Their grandmothers played bingo together. He said the families had a close relationship, and that included the accused, R.E.L.. M.Y. said that R.E.L. attended these events “often.”

[55] Finally, of significance R.E.L.’s evidence made no sense when he testified to the interaction that he had with M.Y. in the basement on Christmas Eve, when M.Y. called him into the basement where R.E.L. experienced “a shock of his life,” as he described it. It made no sense to me that M.Y. would confront R.E.L. like that in the basement of the grandparents’ home on B[…] Drive dressed in female clothing when M.Y. was 14 years old given what R.E.L. told me about a virtual lack of relationship with the Y.s, and M.Y. in particular.

[56] Nevertheless, R.E.L. acknowledged that this encounter took place, the same encounter described by M.Y., thereby corroborating M.Y.’s assertion that it did. R.E.L. described it in detail and his reaction to it. It made no sense to me that M.Y., in his mid-to-late teens, would call his second cousin down to the basement in order to display himself in drag, and insist that he was not gay, something that seems plainly embarrassing and secretive, if there was essentially no relationship between R.E.L. and M.Y. antecedent to that outing.

[57] Yet, when he was questioned about this, his testimony seemed to move around quite a bit. R.E.L.’s response initially was to insist that he thought the demonstration was meant for “someone other than himself,” a person with “an orientation,” who had already left the Christmas party in a state of intoxication after there had been an angry altercation. That person was W.F.. Then, all of a sudden out of nowhere, R.E.L. claimed that in fact he was a victim of a sexual encounter when he was 8 or 9 years old, perpetrated by his older cousin, W.F., when W.F. had been sent over by his parents to the T. residence to babysit A.T..

[58] That was a very surprising outburst, to me and I think both Crown and defence counsel, from my observation, thrown out in the final words of his testimony and left there. It seemed at first to raise the inference that perhaps all of this alleged abuse against these complainants might have been caused by W.F.. But then, after the initial shock of that answer subsided, and when Crown counsel brought him back to the question at hand, he really had no answer as to why he thought that this demonstration by M.Y. was not intended for him.

[59] However, even if R.E.L. was sexually abused by another family member, as terrible as that would have been, it did not explain in any comprehensible or sensible way why R.E.L. responded as he did. If this really had been the shock of his life, he certainly did not display that. He did not call out, or confront M.Y., or ask him “What the devil is going on? Why are you showing this to me?”, as one would expect if it was such a shocking occurrence. None of that happened. Instead, his evidence was simply that he saw M.Y. in that clothing, and then M.Y.’s mother called down to the basement for him to come along because they were going home, and R.E.L. testified that M.Y. simply responded that he was coming along, and then got dressed and left. Nothing more. No other reaction.

[60] While he wanted us to believe that he was shocked and surprised, this is not the response that he showed. The problem is it does not seem credible, candid or forth coming, nor does it make sense in the context of R.E.L.’s claim that there was a lack of a meaningful relationship between himself and M.Y.. It seems incomprehensible that, if he was so shocked, there was not a more visceral reaction or response, but there was none.

[61] There were other examples of R.E.L. conceding evidentiary points, but only after considerable prodding by the Crown. One example was relative to the boardroom at the C[…] where he worked when M.Y. was in his teens. M.Y. alleged that on an occasion when R.E.L. was giving him and a friend a tour of the C[…] facilities, R.E.L. touched M.Y.’s genitals when they were in that boardroom. Initially, R.E.L. abruptly denied that he would ever have reason to go into the boardroom, but when questioned further about having access and wanting to make sure, as a security guard, that he would be checking to ensure that all was in order throughout the facility, including in that boardroom, his answer became less adamant.

[62] In summary, I found that R.E.L. was not a credible witness overall although there were certainly parts of his historical review of his life that I have no reason to doubt. However, his amazing ability to recall detail in the extreme also spoke to a lack of credibility. Counsel for the defence argued that it is very difficult to defend against these types of allegations because essentially, it requires an accused person to recall a period of their life where they are claiming that nothing of significance happened.

[63] However, R.E.L. had no problem doing that, as I have observed. He had an incredible ability to recall the minutest of details during those periods of his life where he claims that nothing of significance happened, but during which these complainants assert they were engaged in extensive sexual conduct with him. He could recall down to work schedules, what days he had off in which weeks, exactly when he worked at the electrician business, and which weeks he worked evening shifts, and he also spoke to school schedules that conveniently corresponded to days of the week when the other witnesses testified they would be seeing R.E.L.. But if he had such an excellent ability to recall these minute details, the need to prod him to obtain expanded answers on questions that started to zero-in and focus on where and when the sexual conduct occurred cannot be reconciled with that “savant-like” memory and recollection on peripheral and irrelevant matters.

[64] So, as I observed him testify and listened to his evidence, I found that the contrast between the portions of his testimony where the amount of detail that R.E.L. could provide was extensive, to put it mildly, and those where there was none, showed a forced and almost rehearsed or forced delivery of evidence and in my view, spoke to an overall lack of credibility.

[65] R. v. Sanichar calls into question historical circumstances where a witness’s testimony must be considered with caution because of the presence of too much detail, but it seems to me that the same principle must necessarily apply to a consideration of the evidence of the accused as well as that of the complainants when the events all took place for all of them decades earlier. In this case, those portions of the evidence that relate to the alleged offences seem fabricated in the context of the rest of the evidence of the accused and that of the other witnesses. It does not make sense that a person would have this much detail. No explanation was provided as to why this man was able to recall such detail regarding matters that did not relate to or were not central to the allegations.

[66] For all of these reasons, I reject R.E.L.’s evidence and I am not left in a state of reasonable doubt by it. I find that much of it was tailored to be self-serving and exculpatory. I find that his denials of the alleged contacts with the complainants, his denial of opportunity, and his efforts to distance himself from the evidence given by the complainants were not credible.

[67] Given that I do not believe the evidence of the accused and am not left in a state of reasonable doubt by it, I turn to whether the Crown has satisfied me beyond a reasonable doubt on the basis of the evidence that the acts as alleged happened. I will deal first with M.Y.’s evidence and then turn to the evidence of K.J..

(ii) Credibility and Reliability of M.Y.’s Evidence

[68] In my view, M.Y. was a very forthright and credible witness. He readily acknowledged unflattering things, not only his criminal record, but also, for example, the instance of wearing the ladies’ undergarments in the basement that was put to him in cross-examination. He did not deny any of those things. Instead he admitted to that event, provided an explanation of what went on, when it happened and why it happened. That was plainly embarrassing for him, but he did not downplay that or other unflattering aspects of his evidence. The pain of the testimony that he gave to this court was evident. The embarrassment he felt at the conduct he described was palpable. His demonstrations of physical actions that took place were compelling.

[69] M.Y. had a level of detail in his testimony that was absent from that of K.J.. Plainly there were things that he did not remember, times and dates in particular. Even though he could not be certain of some of the dates of events, he nevertheless had very specific recollections of occasions where something happened, and he would describe it, even though he might not have been able to recall when those events took place, although he did have very specific recollections of where all of those events took place. Indeed in one case, relative to the abuse alleged to have occurred at the Sibbald’s Point campground, while M.Y. could not recall what year that was, he did provide a significant timeframe because he specifically remembered that was the year in which his father had purchased a new boat and trailer.

[70] R.E.L. asserted that M.Y. has a motive to implicate him and has been out to get him for years since R.E.L. complained to police about a possible break and enter at the P[…] Road house. Apparently R.E.L. alleged that was caused by M.Y., although there was no other evidence of such an occurrence. However, M.Y.’s evidence did not appear to me to be fabricated as a way of getting back at him. M.Y. showed no rancour in his testimony, and his demeanour displayed no signs of animosity towards the defendant.

[71] He plainly acknowledged, on his own and before R.E.L. testified, that he had not communicated with R.E.L. for the better part of 30 years since that police occurrence report was filed. Even so, while that might otherwise have been a factor to be taken into account in assessing his credibility, it did not undermine his credibility in my view in this case. The reliability analysis that must be conducted of M.Y.’s evidence provides guidance in this regard. It looks, amongst other things, for the presence of external corroboration of his evidence, that, if present, will either support or undermine his credibility.

[72] Sanichar tells me that in assessing the reliability of M.Y.’s evidence, I must consider four particular issues. First, I must consider internal and external inconsistencies. Defence counsel candidly acknowledged in his submissions that there were few, if any, internal or external inconsistencies apparent in M.Y.’s testimony relative to what he claims happened to him. He acknowledged that he was “largely unshaken” by cross-examination.

[73] M.Y. did not initially report the sexual conduct. He never initiated a report on his own. He said he was ashamed of what he had done and the activity he had participated in with R.E.L. when he was a minor. In addition, however, he explained to me that he had a criminal record, now over 20 years old, so he never made a complaint earlier because he did not believe that anyone would believe him, because of that record. However, after K.J. made his complaint to the police, the police came to see M.Y. also, and asked him if he had ever been touched by R.E.L.. He acknowledged that he had, and it was only then that he provided a detailed statement to the police of the sexual conduct that he alleges took place between them.

[74] M.Y. gave that statement to the police. He gave his evidence at the preliminary hearing. He was not impeached on any meaningful or significant inconsistencies between the versions of events he provided on those two occasions. His evidence before me was the same. He was not impeached on his description of providing fellatio to R.E.L. and going home and washing his mouth out with Ajax. He was not impeached in any meaningful way on his description of being anally penetrated by R.E.L. in the basement at B[…] Drive as he leaned over the shelving in his grandfather’s workroom. There were really no inconsistencies that were put to him with respect to any of those, or other details of those allegations, and there were no obvious aspects of his evidence that did not appear to make sense.

[75] M.Y. described what happened, and R.E.L. gave evidence that showed on his own testimony that there was opportunity. R.E.L. acknowledged that he did go to the F.s’ house for those family gatherings. R.E.L. claimed that M.Y. was very rarely there, but I have rejected that evidence. On the whole of the evidence, the more logical conclusion, as M.Y. testified, was that the extended F. and T. families, including his own, gathered at the grandparents’ house on B[…] Drive on many occasions, and that R.E.L. was present for many of those occasions.

[76] There were no other external inconsistencies in the evidence that make this evidence impossible, illogical, or not believable. There was nothing that counsel for the defence could point to in support of a claim that the allegations that M.Y. made are not believable or that they did not make sense as he described them.

[77] Further, M.Y. was credible about whatever inconsistencies were present. He was forthright in admitting that there may be some details that he did not recall specifically, especially given the passage of time. However, even so, as the Supreme Court cautioned in W.R., above, in assessing the importance of details on which M.Y. was unclear, I must look at them from the perspective of a child whose ability to recall and recount may not be that of an adult. Moreover, even if there were such imperfections in his testimony, which I do not regard as surprising, what is important is that his testimony about what happened to him at the hands of R.E.L. was unshaken. It was not questioned in any meaningful way.

[78] In assessing his evidence, I have also considered whether any influences over time may have distorted M.Y.’s memory; there was no evidence of any such events. There was no evidence that he had ever taken any counseling which might have influenced his memory. There was no evidence of him ever recounting his story over and over again to different people. There was nothing in the evidence that could seemingly be blamed for altering M.Y.’s memory, apart from the significant passage of time since these events are alleged to have occurred. Plainly, while the frailty of human memory increases as time passes, and as counsel reminded me, the mere passage of time may itself be a subtle influence over a change in memory, there is nothing on the evidence that was presented before me to suggest that there had ever been any meaningful change in M.Y.’s memory. There were no inconsistencies in the versions of events to which M.Y. testified.

[79] Neither, in my view, was there a possibility of collusion or contamination of M.Y.’s evidence, or indeed that of K.J.. Both of them were clear that they had never spoken to each other about these allegations. There were some shaky suggestions put to M.Y. that K.J.’s sister may have been a possible conduit for information and collusion, but M.Y. testified that his relationship with her was when he was at a much younger age, in his late teens and long before he ever disclosed the sexual conduct to anyone. The highest that evidence got was that M.Y. downplayed the significance of their relationship in his evidence before me, even though he had acknowledged in his original statement to the police that he had been close to K.J.’s sister when they were young. He testified that he never told her of what had been done to him by R.E.L..

[80] Without more, in my view this skimpy assertion is not enough on its own to compromise the reliability of M.Y. or K.J.’s evidence. There does not seem to me to be any realistic issue with respect to collusion as between K.J. and M.Y.. I find they have not spoken to each other about these allegations.

[81] Nevertheless, consistent with the point noted earlier about an absence of motive to lie, I would specifically note again at this juncture that the inability of the defence to adduce positive evidence of collusion between K.J. and M.Y. does not and cannot serve to bolster their credibility. Counsel for the defence acknowledged that there was no meaningful evidence of either collusion or motive to lie relative to either M.Y. or K.J.. However, that does not enhance nor does it detract from the credibility or the reliability of the evidence of either of those two complainants. It is a neutral fact. As defence counsel observed, to conclude otherwise would run the risk of reversing the burden of proof. It might be seen to require the defence to advance positive evidence of motive to lie or evidence of collusion in order to disprove the Crown’s case. Plainly that is not the case, and I have been mindful that while the presence of such evidence could or would detract from the credibility of the evidence of the complainants, the absence of such evidence does not bolster their credibility.

[82] Lastly, in accordance with R. v. Sanichar, I have considered whether there is an absence of evidence that may have been available if the case had been prosecuted in a timely fashion, and which in turn affects the reliability of the evidence of the two complainants. In Sanichar, however, and unlike in this case, a witness testified that the complainant had testified that she had specifically made the allegations of sexual abuse to a school authority and to the CAS, but there was no evidence to confirm that information. In fact, when investigation was undertaken, there was no indication that those reports had ever been made by the complainant. So in that case, the passage of time meant that there were no records in existence that could support the evidence of a complaint having been made years earlier.

[83] On the facts of this case, however, it is not evident that there would likely have been any information that could have been available if the case had been prosecuted at an earlier time, aside perhaps from used portions of plane tickets for the trips to Florida. As in many such historic sexual assault cases, the only evidence is that of the complainant or complainants and that of the accused. As such, there may be little evidence available to corroborate or confirm a version of events.

[84] Nevertheless, there is nothing on this evidence to suggest that there could have been evidence available if this case had been prosecuted earlier that has not been available at this trial. There is no evidence of any witness who has since passed away who might otherwise have had cogent evidence for the court to consider, nor has there been any assertion of an absence of documentary evidence owing to the passage of time.

[85] Looking at M.Y.'s evidence from that perspective, there was nothing that I found that took away from the reliability of his evidence. His ability to recall accurately what happened to him was reliable standing on its own, but even beyond that, when considering the evidence as a whole, there is other evidence that I find corroborates M.Y.’s testimony, given my ruling granting the Crown’s similar act application as between counts, and even more importantly, given the evidence to which R.E.L. testified.

[86] There is a considerable degree of corroboration relative to at least particular aspects of M.Y.’s evidence that to my mind informs the conclusion that he is not only credible, but also reliable in his evidence about much of what he asserts transpired between himself and R.E.L. over a period of years when he was between the ages of 5 or 6 and 14, particularly with respect to the abuse at the B[…] Drive and P[…] Road residences.

[87] The evidence disclosed that R.E.L. had a reel-to-reel projector. He had a pornographic movie. Even if he denied serving rum drinks to the young teenagers, he acknowledged that he had rum, specifically, dark rum, which is what M.Y. specifically recalled.

[88] R.E.L. confirmed that he had a projector screen in the basement and he corroborated M.Y.’s description of both the basement at B[…] Drive and the basement at P[…] Road. He corroborated the existence of the particular shelving under the bench in the workroom in the basement of the F.’s residence, where M.Y. says he was anally penetrated by R.E.L., and he corroborated the opportunity.

[89] R.E.L., on his own evidence, indicated that there was some considerable opportunity for the alleged sexual conduct to have taken place, given the frequency with which he was going to the F.s’ address. M.Y. testified about bingo on Wednesdays when he would be left in the care of R.E.L.. When R.E.L. was questioned about this, he said he had classes to go to on Wednesdays, but he confirmed that bingo happened on Saturdays. So while the day of the week was different, not surprising after M.Y. said it happened on Wednesdays, R.E.L. nevertheless corroborated the bingo and more importantly, the opportunity it created. R.E.L. was clear. He corroborated the fact that the F.s would go to bingo, and M.Y. testified about the bingo and being left in R.E.L.’s care while the grandmothers went to play bingo.

[90] Based on the similar act ruling, and the purposes for which I allowed that evidence, it is also important that the evidence of K.J. corroborates the ages at which the sexual conduct occurs, and importantly, both M.Y. and K.J. testify to the presence of the Polaroid camera and R.E.L. taking pictures of them, with specificity. In that respect, K.J.’s evidence about the presence of that camera and R.E.L. taking pictures of his genitals serves to corroborate M.Y.’s separate evidence of R.E.L. having taken pictures of his genitalia with a Polaroid camera where the picture came out of the front of the camera.

[91] In summary, relative to M.Y., I find his evidence to be reliable standing on its own, but also because it is corroborated in important details by R.E.L.’s evidence and by the very specific evidence of K.J. on specific points, regardless of whether K.J.’s evidence is reliable overall. So contrary to the submissions of defence counsel that M.Y.’s evidence is not reliable, I find that it is credible and reliable on its own, and because of the corroboration provided by the evidence of both R.E.L. and K.J..

(ii) Credibility and Reliability of K.J.’s Evidence

[92] As compared to the evidence of M.Y., there were plain and acknowledged issues of reliability in the evidence of K.J.. K.J. readily admitted that he had suffered from addiction to both drugs and alcohol, and he was candid that those afflictions have had an impact upon his ability to accurately recall certain details in his memory. He was also candid relative to his inability to recall dates and times, as became clear in his evidence.

[93] K.J. was unable to give even vaguely specific times or dates when the sexual abuse is alleged to have occurred. As well, there were some significant inconsistencies in his story as first told to the police and later at the preliminary inquiry about details that the Crown argues should be regarded as peripheral: the colour of the couch in the living room at P[…] Road on which some of the abuse is alleged to have occurred, whether he travelled to Florida by plane or by car. Nevertheless, even with these evidentiary issues, the Crown submitted that there was at least one specific instance that K.J. described of being sexually abused in R.E.L.’s bedroom when he was between the ages of 10 and 12, that is somewhere in 1984 to 1986, when K.J. said he was lying on the bed, and R.E.L. performed oral sex on him and took a photograph of his naked genitalia.

[94] The Crown argued that evidence should put to rest any reliability concerns I might have, when combined with the rest of K.J.’s evidence which she claims can be corroborated by M.Y. and R.E.L.. The corroboration is claimed to be the agreement between the evidence of R.E.L. and that of K.J. of being in the basement at P[…] Road two or three times. R.E.L. claimed to be able to recall three times when K.J. was alone in the basement, consistent with K.J.’s claim of at least three occasions of abuse there.

[95] As well, K.J. testified about how R.E.L. provided him with rum and Coke or rye and Coke, and provided a description of the basement in P[…] Road, including the couch that was there and sometimes slept on, and each of those points were essentially confirmed by R.E.L.. Corroboration of K.J.’s accounts of sexual touching was also said to be provided by the evidence of watching movies in the basement.

[96] The Crown argued that extensive aspects of K.J.’s evidence were capable of being corroborated from the evidence of R.E.L. and the similar fact evidence of M.Y.. The circumstances in which the sexual touching takes place, watching pornography, and being in a situation where they are alone, is all corroborated by K.J.’s account. When the amount of his evidence that can be corroborated is examined, Crown counsel argued that any concerns I might otherwise have about the reliability of K.J.’s evidence can be addressed.

[97] Against this backdrop, the Crown claimed that the acts described by K.J. were not called into question, and it was only in respect of peripheral details that his evidence was impeached in any significant way. Those were the details relative to the abuse claimed to have occurred in Florida and whether K.J. got there by car or plane. They relate to the details of whether the sexual abuse took place upstairs or downstairs at P[…] Road, and whether he really has a recollection of how it occurred.

[98] In fairness to Crown counsel and with respect for K.J., and his courage and tenacity in testifying here to those alleged past events, there is much that I found to be persuasive in those submissions. However, I found that the strength of those arguments was not adequate to restore my faith in the reliability of K.J.’s evidence when I took account of the facts and circumstances of the serious discrepancies in important detail that were present here.

[99] I became concerned that K.J. was at least partially engaging in the all-too-human but, unfortunately, unreliable process of trying to piece together his memory over a lifetime of alcohol and drug abuse, the lapse of time, translating childhood memories into adult memories. K.J. admitted that in some areas his memory is just not that reliable because of the passage of time and those other issues.

[100] K.J. appeared completely credible, passionate, and emotional. I do not doubt that he truly believes the evidence he provided in its different versions, each of the times when he recounted his story. He looked and sounded just as convincing in both instances, but this highlights the difference between credibility and reliability and honest but mistaken witnesses.

[101] K.J. admitted that his memory has changed over time. However, the problem with memory changes, and the nature of this change, is that you do not know that it has changed until someone else points out to you that you have said different things on different occasions. We know of the areas where there were serious and important inconsistencies between the police statement, the preliminary inquiry evidence and the evidence given at trial. Those differences highlight the frailties of memory over time. The problem is that we have no way of knowing what else may be wrong with K.J.’s memory.

[102] I am reminded by Justice Minden in R. v. McGrath,[^9] that “...[a] trier of fact must pay particular attention to serious inconsistencies in the account as well as to significant inconsistencies between present testimony and prior accounts. Such inconsistencies may disclose unreliability” (my emphasis). There is no question in my mind that K.J. made his very best effort to recall all of the detail that he wanted to tell us transpired 30 years ago, but despite his best efforts, credibility aside, I must be cautious to distinguish between memory and recollection, and alternatively, the reconstruction of distant events that may have been coloured or distorted by time and life experience.

[103] When K.J. told his story, whether it was relative to how he got to Florida where he testified the abuse first occurred, and whether that was by car or by airplane, and when he testified about the sexual abuse taking place on the sofa in the living room at P[…] Road, he spoke with passion, clarity and certainty of his claimed recollection. The trip to Florida was a first. It was also his first airplane flight, a memorable event one would not likely forget and about which one would be unlikely to be mistaken. In my experience, very few people who first took a flight after they had grown to a cognitive age cannot still tell where they went, and with whom. It is one of those significant life events that we tend not to forget or become confused about.

[104] True to the strength of such recollections, K.J. used exceptionally strong language to describe those events, stating “I’ll never [expletive] forget that until the day I die or as long as I live” and “I remember it like it was yesterday,” and relative to the abuse having taken place on the sofa, “I know it was upstairs because I saw – I can see in my mind that white sofa.” The issue, however, is that in doing so K.J. was plainly tying his credibility to the reliability of his memory. What makes it important is not the detail itself, but rather the certainty of his recollection of the detail. The problem was that the detail he recalled was fundamentally and distinctly different on the different occasions when he told the story.

[105] He was emphatic that he had clear memories and he was equally emphatic relative to the ancillary memories of the flight to Florida, where he sat, and who he was with and how fantastic that plane ride was. He had great surface recall, a very passionate, detailed retelling of this detail of an event that a child would not likely forget. That is why it became relevant for me that when he was being interviewed by the police in 2012, there was no description of an airplane, and where he sat and with whom. Instead, he was equally emphatic and certain that he drove with his uncle in a car all the way to Florida. A 24-hour car trip is also something that would generally stick out in your memory, certainly, as being different from an airplane.

[106] He claimed that he would never forget the initial abuse that took place in Florida and that he got to Florida to visit his grandparents by airplane, both seemingly events unlikely to be forgotten. Yet the next time he testified, he was equally adamant that he would never forget as long as he lived having driven to Florida with R.E.L., where the abuse first occurred. It is the tying together of the core allegations with descriptions of places and events that is then inconsistently described on sequential renderings of the story, and that causes concerns to arise in my mind about the reliability of K.J.’s evidence on those aspects as well.

[107] Finally, there was one other particular aspect of K.J.’s evidence that caused me concerns that undermined my confidence in his evidence as a whole. M.Y. had testified relative to the playing of pornographic movies by R.E.L. preceding a number of their sexual encounters. K.J. also gave evidence about pornographic movies being played on an eight millimetre projector, not just for him, but also for a number of the neighbourhood kids. These viewings evidently took place when there were adults upstairs in the same house. The difficulty I had with this evidence was that it did not make sense to me that none of those neighbourhood kids would have mentioned that to any of those adults. K.J. testified that on one occasion, his sister suddenly ran upstairs as a movie was being shown. The question is, does it make sense that none of the neighbourhood kids in their mid-teens who K.J. said were present on a number of occasions, including K.J.’s sister, ever mentioned this to an adult, or that none of the adults upstairs asked what was going on down in the basement. I found this account did not make sense.

[108] In summary, relative to K.J., while I acknowledge that some certain parts of his evidence appear to be corroborated by other evidence, either that of M.Y. or of the defendant R.E.L., I continue to have uncertainty in my mind because of the reliability concerns I have on his recollection of details that I regard as significant, and not merely peripheral. So while I find K.J. to be a credible witness generally, and certainly one who was sincere and plainly doing his best to be truthful as he endeavoured to recall events that occurred 30 odd years ago, and bearing in mind his own acknowledged memory issues, I simply find that those uncertainties cause me to be unsure that I can rely on the other parts of his testimony. As such, the evidence of K.J. does not satisfy me beyond a reasonable doubt that R.E.L. is guilty of the offence of sexual assault with which he is charged.

Conclusion

[109] In conclusion, having conducted the analysis required by W.D., and as is explained in the preceding sections of these reasons, I do not believe the evidence of the accused that he did not engage in the abusive sexual conduct alleged by the complainants. However, neither am I satisfied that the Crown has proven its case beyond a reasonable doubt relative to the offences alleged by K.J..

[110] K.J. was a sincere and credible witness. Much of his evidence was consistent and corroborative of the testimony of M.Y., and frankly in agreement with a significant part of the detailed evidence given by R.E.L.. However, the differences in significant aspects of his evidence as it was relayed on sequential accounts of the story – in his original statement as compared to the evidence he gave at the preliminary inquiry as compared to evidence that he gave before me at this trial – leaves me unsure that his evidence can be relied upon as a foundation to conclude that the accused committed the sexual abuse against K.J. as he described it. Those uncertainties have caused me to find his evidence to be unreliable to the extent required to found convictions on the charges he advances against the accused.

[111] Even if the evidence would suggest on a balance of probabilities that the conduct alleged by K.J. took place, that is not the standard of proof that applies here. I am not satisfied beyond a reasonable doubt that the charges are made out against R.E.L. relative to K.J. and to my mind, it would be unsafe to convict the accused of any of the three charges relating to K.J. in all of the circumstances of this case. The accused will be acquitted on counts one, two and three.

[112] Neither do I believe the evidence of R.E.L. relative to his denial of engaging in the sexual conduct alleged with M.Y., nor am I left in a state of reasonable doubt by that evidence. I find myself agreeing with and relying on the view of Doherty J.A. at para. 53 of R. v. J.J.R.D,[^10] relative to the route I have taken in reaching the verdict that I have:

An 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 for the substance of the accused’s evidence.

[113] In the case of M.Y., however, as indicated in paragraph 91, I have found his evidence to be credible and reliable standing on its own, but also because it is corroborated in important details by aspects of R.E.L.’s evidence and by certain specific aspects of the evidence of K.J. on specific points, regardless of whether K.J.’ evidence is reliable overall.

[114] As such, I find in the case of M.Y. that the Crown has met its burden of proof relative to count seven having regard to the whole of the evidence that was presented at trial, including the similar fact evidence and the extent to which evidence of the accused also corroborated important aspects of the evidence of M.Y.. A verdict of guilty will be entered on that count.

[115] For the reasons set out above, the other charges, that is, counts four, five and six, are all withdrawn.

MICHAEL G. QUIGLEY J.

Released: December 6, 2013

CITATION: R v REL, 2013 ONSC 7512

COURT FILE NO.: 12-70000829-0000

DATE: 20131206

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

R.E.L.

REASONS FOR JUDGMENT

M.G.J. QUIGLEY J.

[^1]: R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57.

[^2]: R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

[^3]: 2013 SCC 4, [2013] S.C.J. No. 4.

[^4]: 2012 ONCA 117.

[^5]: See Sanichar, above, at para. 41.

[^6]: Ibid., at para. 35 and cases cited there.

[^7]: Paciocco, D. and L. Stuesser, The Law of Evidence, rev. 5th ed. (Toronto: Irwin Books, 2010) at p. 29.

[^8]: R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122.

[^9]: [2000] O.J. No.5735 (S.C.J.) at paras. 11-14, cited in Sanichar, above, at paras. 39-42.

[^10]: 2006 40088 (ON CA), [2006] O.J. No. 4749, 218 O.A.C. 37.