R. v. Cayen, 2015 ONSC 63

R. v. Cayen, 2015 ONSC 63

COURT FILE NO.: 1733/13 and 1734/13

DATE: 20150109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PATRICK MICHAEL CAYEN

J. Boonstra, for the Crown

Phillip Millar, for Patrick M. Cayen

HEARD: November 17, 18, 19, 20, 24, 25, 26, 27, 28, December 1 and 3, 2014

DESOTTI, J.

A. The Facts

1The accused, Patrick Michael Cayen, who was born […], 1958, is charged with a 26 count indictment of indecent assaults and gross indecency offences with respect to three young female complainants while he was a young person within the meaning of the Young Offender’s Act and as well, as an adult, a 28 count indictment of sexual assaults and sexual touching’s with respect to two young females who at the material time were his step-daughters.

2The Youth counts are as follows:

1. That between the 5^th day of December in the year 1970 and the 30^th day of June in the year 1971 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault of L.C., a female person, contrary to Section 149(1) of the Criminal Code of Canada.

2. That between the 5^th day of December in the year 1970 and the 30^th day of June in the year 1971 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit the act of gross indecency with L.C., a female person, contrary to Section 157 of the Criminal Code of Canada.

3. That between the 4^th day of June in the year 1971 and the 4^th day of June in the year 1972 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault P.B., a female person, contrary to Section 149(1) of the Criminal Code of Canada.

4. That between the 4^th day of June in the year 1971 and the 4^th day of June in the year 1972 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with P.B., contrary to Section 157 of the Criminal Code of Canada.

5. That between the 4^th day of June in the year 1971 and the 4^th day of June in the year 1972 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault P.B., a female person, contrary to Section 149(1) of the Criminal Code of Canada.

6. That between the 4^th day of June in the year 1971 and the 4^th day of June in the year 1972 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with P.B., contrary to Section 157 of the Criminal Code of Canada.

7. That between the 4^th day of June in the year 1971 and the 4^th day of June in the year 1972 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault P.B., a female, contrary to Section 149(1) of the Criminal Code of Canada.

8. That between the 4^th day of June in the year 1971 and the 4^th day of June in the year 1972 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with P.B., contrary to Section 157 of the Criminal Code of Canada.

9. That between the 4^th day of June in the year 1971 and the 4^th day of June in the year 1972 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault P.B., a female, contrary to Section 149(1) of the Criminal Code of Canada.

10. That between the 4^th day of June in the year 1971 and the 4^th day of June in the year 1972 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with P.B., contrary to Section 157 of the Criminal Code of Canada.

11. That between the 6^th day of July in the year 1972 and the 6^th day of July I the year 1977 inclusive, at Lake Penage, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault K.A., a female, contrary to Section 149(1) of the Criminal Code of Canada.

12. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at Lake Penage, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with K.A., contrary to Section 157 of the Criminal Code of Canada.

13. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at Lake Penage, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault K.A., a female, contrary to Section 149(1) of the Criminal Code of Canada.

14. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at Lake Penage, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with K.A., contrary to Section 157 of the Criminal Code of Canada.

15. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at Lake Penage, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault K.A., a female, contrary to Section 149(1) of the Criminal Code of Canada.

16. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at Lake Penage, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with K.A., contrary to Section 157 of the Criminal Code of Canada.

17. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault K.A., a female, contrary to Section 149(1) of the Criminal Code of Canada.

18. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with K.A., contrary to Section 157 of the Criminal Code of Canada.

19. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault K.A., a female person, contrary to Section 149(1) of the Criminal Code of Canada.

20. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with K.A., contrary to Section 157 of the Criminal Code of Canada.

21. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault K.A., a female, contrary to Section 149(1) of the Criminal Code of Canada.

22. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with K.A., contrary to Section 157 of the Criminal Code of Canada.

23. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Copper Cliff, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault K.A., a female, contrary to Section 149(1) of the Criminal Code of Canada.

24. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Copper Cliff, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with K.A., a female, contrary to Section 157 of the Criminal Code of Canada.

25. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did indecently assault K.A., a female, contrary to Section 149(1) of the Criminal Code of Canada.

26. That between the 6^th day of July in the year 1972 and the 6^th day of July in the year 1977 inclusive, at the Town of Lively, in the Province of Ontario, a young person within the meaning of the Youth Criminal Justice Act, did commit an act of gross indecency with K.A., contrary to Section 157 of the Criminal Code of Canada.

3The Adult counts are as follows:

1. That between the 1^st day of July in the year 2000 and the 1^st day of September in the year 2003 inclusive, at the Town of Aylmer, and elsewhere in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

2. That between the 1^st day of July in the year 2000 and the 1^st day of September in the year 2003 inclusive, at the Town of Aylmer, and elsewhere in the Province of Ontario, did for sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

3. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

4. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose counsel K.T., a person under the age of fourteen years to touch directly with her hand a part of his body, to wit: penis, contrary to Section 152 of the Criminal Code of Canada.

5. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

6. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

7. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

8. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

9. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose counsel K.T., a person under the age of fourteen years to touch directly with her hand a part of his body, to wit: penis, contrary to Section 152 of the Criminal Code of Canada.

10. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

11. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose counsel K.T., a person under the age of fourteen years to touch directly with her hand a part of his body, to wit: penis, contrary to Section 152 of the Criminal Code of Canada.

12. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

13. That between the 1^st day of July in the year 2003 and the 31^st of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

14. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose counsel K.T., a person under the age of fourteen years to touch directly with her mouth a part of his body, to wit: penis, contrary to Section 152 of the Criminal Code of Canada.

15. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

16. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

17. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

18. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

19. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

20. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

21. That between the 1^st day of July in the year 203 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

22. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

23. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

24. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

25. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on K.T., contrary to Section 271 of the Criminal Code of Canada.

26. That between the 1^st day of July in the year 203 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch K.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

27. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did commit a sexual assault on J.T., contrary to Section 271 of the Criminal Code of Canada.

28. That between the 1^st day of July in the year 2003 and the 31^st day of December in the year 2006 inclusive, at the City of Sarnia, in the Province of Ontario, did for a sexual purpose touch J.T., a person under the age of fourteen directly with a part of his body, contrary to Section 151(a) of the Criminal Code of Canada.

B. The Application

4The Crown brought an application to have admitted at the accused’s adult and youth trials evidence of similar acts. I gave a brief written decision allowing the application and indicated that I would provide a more detailed reason in my judgment. The brief written reasons are as follows:

This is an application by the Crown to have admitted each of the accused adult and youth trials’ evidence of similar acts. The Crown is seeking leave to have admitted each of the accused adult and youth trials’ evidence of similar acts, including the admission of the evidence tendered to prove each count on the adult indictment as evidence tending to prove the other counts on the adult indictment. The admission of the evidence tendered to prove each count on the youth indictment as evidence tending to prove the other counts on the youth indictment. The admission of the evidence tendered to prove the allegations on the youth indictment as evidence tending to prove the allegations on the adult indictment and the admissions of the evidence tendered to prove the allegations on the adult indictment as evidence tending to prove the allegations on the youth indictment and the admission of the videotape of Stephanie Cayen regarding acts complained of in 1995 as evidence tending to prove the allegations on both the adult indictment and the youth indictment.

Counsel for the accused does not object to the evidence of various counts within the youth indictment as being evidence tendered to prove the other counts within the youth indictment, nor is he opposed to evidence within the adult indictment tending to prove the other counts within the adult indictment, but he opposes the cross-over of the evidence in the youth indictment as tending to prove other counts within the adult indictment and vice versa. And of course, he opposes any reliance on the videotaped recording of Stephanie Cayen as tending to prove counts in either of the youth or adult indictment.

As a general rule, evidence which is adduced solely to show the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Thus, propensity or disposition evidence is usually inadmissible, because the evidence is often highly prejudicial and only slightly probative. However, in circumstances where the probative value substantially outweighs the prejudicial effect and there is an objective improbability of coincidence in the degree of similarity between the acts under consideration, similar fact evidence may be admitted.

In this proceeding, there was no severance application. However, the youth trial and the adult trials were followed and to be followed one right after the other. In fact, because of difficulties with witnesses at times, one trial was adjourned and the other trial commenced to accommodate this problem.

In the Supreme Court of Canada in R v. Arp, a determination of the trial judge must be made that the similar acts were likely the work of one person and then there must be, additionally, some evidence linking the accused to the alleged similar acts. Again, the first step in determining the admissibility of similar fact evidence is a conclusion that, on a balance of probability, the alleged similar acts were committed by the same person. R. v. Powell.

In R. v. Handy, the Supreme Court of Canada indicated that the factors that should be considered in determining whether the proposed acts are similar enough to warrant acceptance are as follows. Justice Binnie stated:

. . .proximity in time of the similar acts, extent to which the other acts were similar in detail to the conduct, number of occurrences of the similar acts, circumstances of the similar acts, circumstances surrounding and relating to those similar acts, any distinctive features unifying the incidents, intervening events, any other factor which would tend to support or rebut the underlying unity of the similar acts.

Justice Binnie again in R. v. Handy indicated the four factors that increase the prejudicial effects of acts are:

. . .the inflammatory nature of the similar acts, whether the Crown can prove its point with less prejudicial evidence, the potential distraction of the trier of fact from the proper focus on the facts as charged, potential for undue time consumption.

The second step or leg is that the trial judge must be satisfied beyond a reasonable doubt that the accused committed the similar acts. In R. v. P. (S.J.) [2014] O.N.C.J. 375 214 Carswell Ont.. 11419, the Court allowed the Crown to access the adult accused past youth criminal record. The purpose of the application was that the Crown wanted to access those records as a means to prove similar fact evidence in new adult charges.

In relying on the new chart filed as Exhibit Number 4 by the Crown, I am satisfied that the Crown has established that the proposed evidence of similar acts bears a striking similarity to the offences as charged arising from the cumulative effect of a number of similarities, some bearing a unique hallmark or signature. In this sense, I have considered the manner in which the alleged similar acts were committed.

I have not considered the evidence linking the accused to these acts, although as stated in R. v. McCormick, it is at times difficult to draw a bright line between similarities in the manner in which the act is committed and the accused involvement in that act.

5As indicated, I concluded that the Crown could use similar acts from the adult offences as tending to prove the allegations on the youth offences and similar acts from the youth offences as tending to prove the allegations of the adult offences and as well the evidence of S.C., the daughter of the accused, with regard to acts complained of in 1995 as evidence tending to prove the allegations in the Youth indictment and Adult indictment.

6These are my expanded reasons.

7Initially, the Crown relied on the evidence of five complainants. These five complainants were all young female children at the time the offences were committed. The sixth female was the accused’s teenage daughter, S.C., who alleged, both through a transcript and then by live video, an incident wherein she described how her father had placed his finger inside her vagina in her bedroom in their residence in Dawson City, Yukon while she was sleeping.

8In that alleged incident, charges were laid against the accused, Patrick Cayen, but seven months later at the preliminary hearing the charges were stayed, because of the complainant’s recantation. S.C. stated that what she had indicated to the police about what she alleged her father had done to her, was only “that she thought something may have happened”, “a vague feeling”, that she was “99.9% sure it did not happen”, and that after she read her statement as an adult today that she realizes that “nothing has happened”.

9This complainant also testified in this trial and indicated that she had recanted her previous sworn video-taped statement. Nevertheless, I allowed a KGB application and also allowed the Crown to cross-examine S.C. with respect to her sworn statement (only the transcript was before the court during her testimony). This witness did not have an opportunity to see her video-taped statement before she returned to the Yukon.

10S.C. indicated that during the course of her statement she felt that she was lead through the allegations by the investigating officer and that she felt frustrated and some resentment about the entire interview process. She also indicated that her allegations about what her father did to her were “not clear in the statement” and that her statement was “a memory not a fact”.

11In addition, she indicated at page 19, line 28 of her present testimony before me as follows:

A. I remember them asking me questions over and over when I would answer the questions and they would change what I was saying.

12While this is her present testimony about her memory of this interview, there is no indication of that type of repetition reflected in the written or videotaped statement, nor is there any attempt at modifying or restating her answers as reflected in what she stated had occurred during the course of her interview.

13In the course of the cross-examination by the Crown (a section 9 (2) C.E.A. application), which I conclude was quite non-confrontational, I could not detect, from the written transcript of S.C.’s response to questions posed by the officer, where exactly the frustration, leading questions or resentment was reflected in this written transcript.

14In other words, although she indicated that she was frustrated, I could not detect this level of anxiety or frustration from her testimony about this written statement nor did I perceive this frustration when I viewed the sworn video-statement.

15In fact, at page 39, line 20, in the course of the Crown’s cross-examination, S.C. states in answer to the question “Now can you explain to me in any way how Officer Butterworth-Carr led you or encouraged you to give that answer to say that it was : “Like from my vagina”. Her answer to this question by the Crown was “It does not appear that she did.”

16While the weight of this evidence should be somewhat discounted as a result of the subsequent recantation, nevertheless, the allegation by S.C. that the accused had been in her bedroom while she slept and that she believed he inserted his finger into her vagina, is virtually identical to what was described by the complainant, K. T., while she was giving her evidence about how the accused had inserted his finger into her vagina while she slept in her bedroom.

17Obviously, the manner of sexual assault/touching was decidedly similar in both accounts even if the former complainant, S.C. believed that what she indicated was merely a memory and not a fact. The level of coincidence in this conduct, even if merely a memory, is of some significance when the memory of the incident that formed the basis for the criminal charges with respect to S.C. was similar to the manner in which the complainant, K.T described her sexual assaults.

18Certainly, there is absolutely no suggestion from defence counsel that this evidence given by the complainant, K.T. is anyway tainted by some discussion between K.T. and S.C. and thus the similarity is, at the very least, unusually similar.

19Before I deal with other similarities in the type of allegations of sexual assaults, I wish to deal with the evidence revealed for the first time by the complainant, K.F. Initially, when she gave her statement to the police back in 2012, there was no indication that the accused had been involved in any sexual activity with this complainant, K.F.

20She then, during the course of this trial, while living at the complainant’s K.T. residence, went to the police and revealed for the first time that the accused had inserted his finger in her vagina both on his living room couch and in his hot tub. The accused, Patrick Cayen was then charged with a further four offences and of course these allegations were similar to the allegations made by both his daughter in her KGB statement and his step-daughter K.T. (I would note that these charges are not before me at this trial).

21In R. v. Handy, where there is an ‘air of reality’ to the assertion that there may be collusion on the part of a witness or the potential for collusion, the Crown must satisfy the court on a balance of probabilities that the evidence of similar acts is not tainted with collusion. However, as was stated in R. v. G.(L.) (Ontario Court of Appeal), the issue is not contact but collusion or concoction.

22Clearly, there has been an opportunity for collusion on one hand and an explanation by the complainant that she was dealing with mental health issues and “felt conflicted” in that she wanted to help the victims but was not able to speak about this issue. She also believed that it would belittle the victim K.T. and that no one would believe her and she was in denial.

23Her evidence was that at certain times when the accused was alone on the couch with her in his living room that he would insert his finger into her vagina and as well on occasion when they were alone in the hot tub that he would insert his finger into her vagina and on one occasion he felt her all over her body while in the same hot tub.

24On the other hand, Samantha Mercado (Cayen), the accused’s daughter, indicated that her father, the accused, disliked K.F. as she was “sporadic and needy”. The accused, when he gave his evidence, denied any sexual contact with this witness and specifically indicated that not only did he dislike her but often sent her home as she was a disruptive influence with his step-daughters. He denies any hot tub alone time with this witness and that at no time was he alone with her on the couch watching movies.

25In cross-examination of K.F. by defence counsel, the movie that the witness indicated that she had watched with the accused when he put his finger into her vagina was ‘The March of the Penguins’. Given the time frame when this movie was released in Canada, the witness, K.F. acknowledges that it could not have been this movie at the material time when she alleged she had been digitally penetrated.

26Nevertheless, on balance, I probably would have allowed her evidence of similar acts to go to a jury with serious admonitions about the weight to be given to her similar evidence about these sexual allegations.

27In this sense, I would have highlighted her inconsistent statement, the timing of her revelation, the impossibility of the movie she claimed she watched with the accused when she was sexually assaulted, and the evidence of the accused’s daughter and the accused that because of his dislike of his step-daughter’s friend that it would have been highly unlikely that he would have been ever alone with her either on the couch or in the hot tub.

28Given that this is a judge alone trial, I make the same admonition to myself and give her evidence on similar facts in support of these sexual allegations little if any weight.

29Counsel for the accused did not object to the application by the Crown that the evidence tendered on the Adult indictment could be considered as evidence to prove the other counts in the Adult indictment nor that the evidence tendered to prove each count in the Youth indictment could be considered as evidence to prove the other counts in the Youth indictment.

30His primary objections was that there should be no cross-over between the indictments nor should S.C.’s statement or video statement be utilized as a similar fact allegation to be considered in both indictments. Succinctly, defence counsel submitted that there was the passage of thirty plus years between the youth and adult charges; the charges against the accused in the allegations by S.C. were subsequently stayed; and more importantly, the accused was not an adult but a young person of between 12 to 15 years at the time of the alleged youth offences.

31I obviously ruled differently. I acknowledge that in considering the factors as reflected in the Handy decision, ‘proximity of time’ would not be present in the allegations in the Youth indictment and the time frame as alleged in the Adult indictment. Nevertheless, there are significant other factors that are present and compelling to allow for such a cross-over of similar acts.

32The factors I consider significant arising from both indictments are as follows:

1. All of the female complainants except S.C. (teenager) were very young female children.

2. There was a close connection or relationship to the accused. The young girls were all neighbours, a cousin, daughter, or step-daughters. These female children were all well known to the accused and as such none of these allegations reflected a random encounter with a stranger or a chance encounter with a young female child.

3. Excepting L.C., all of these female children were in the presence of the accused because he was in a position of trust. He was the father, stepfather, babysitter, or person in authority (supervising adult with respect to K.F.).

4. Any of the alleged sexual contacts were said to have been occasioned in places where the accused frequented or was accustomed to, such as his home, cottage (camp), or the child’s home. Moreover, these sexual encounters occurred in familiar surroundings such as the complainants’ bedroom, the complainant’s bathroom, the complainant’s living room, the accused’s living room couch, sauna, cottage bedroom (bunkbed), accused’s hot tub, accused’s basement and the accused’s front vestibule.

5. The sexual contact did not include sexual intercourse but fondling and touching of the female child’s genitals including the insertion of a finger into their vaginas (two complainants, the allegation of his daughter S.C., and the witness K.F.), licking of their vaginas (two complainants), and in one instance with the witness, K.F., the assertion that he touched her all over her body.

6. In addition, the accused with four complainants had them perform oral sex and with the same four complainants had them masturbate him.

7. Two complainants were asked to observe him ejaculate (sauna and bathroom).

8. No complainants indicated that they had engaged in any kissing.

9. Two complainants in the Youth indictments indicated that they were warned that he would “tell my parents I was bad” and with respect to another complainant “don’t tell or you’ll be in trouble”.

10. The three complainants in the Youth indictments were childhood friends and two were childhood neighbours, while S.C. was a distant stepsister to the two complainants K.T. and J.T., and K.F. was J.T.’s best friend.

33In my assessment, these similar circumstances, details of allegations, and distinctive features, coupled with a paucity of any negative factors (see Handy) was the rationale for my decision to allow the cross-over in the allegations in the Youth indictment to prove the allegations in the Adult indictment and vice-versa and to allow the allegations of S.C. and her sworn written and videotaped statements and the Crown’s KGB application to reflect similar fact circumstances with respect to both the adult and youth offences.

C. Evidence in Support of Each Count in the Adult Indictment

1. Count # 27 and # 28, the Complainant, J.T. (Birthdate, […]. 1997)

34The first counts in the Adult indictment that bears close scrutiny is that of the allegations by J.T. as reflected in counts # 27 and # 28. In her statement to the police on November 30^th, 2012, she indicated that the accused when she was given a bath would place lotion on her body and would also put lotion on her vagina.

35In her view, looking back at this incident, the accused had lingered too long in putting lotion on her vagina and thus we have the two offences before the court. At the trial, however, she did not refer to this incident but described how upon exiting the bath on one occasion and sitting on the couch beside the accused while wearing only a towel, the accused used a massager to rub her vagina.

36This incident was denied by the accused, although he did affirm that he had dried skin and did from time to time used lotion, particularly on his legs. This inconsistency in the allegations of what the complainant originally indicated was the manner in which she was sexually assaulted and the trial evidence obviously undercuts the assertion of a sexual assault by the complainant, J.T.

37More importantly, no other witness who resided in this residence, referred to the accused’s use of a massager. No massager was ever produced by the police or Crown. Obviously, some confirming evidence that such an instrument existed would have been some modest affirmation of the possibility alleged by the complainant concerning the inappropriate use of said instrument.

38In the result, because of the inconsistency in the version of the manner in which the complainant was sexually assaulted, the lack of corroborative proof of the existence of the massager, which proof, I conclude, could have been available or produced, and completing the W. (D.) analysis wherein the accused denied committing this sexual assault, I have a reasonable doubt with respect to these two counts and thus there will be a finding of not guilty.

2. Counts # 1 through Counts # 26, the Complainant K.T. (Birthdate, […],

1995)

39The first account by the complainant, K.T. that she was sexually assaulted by the accused occurred when the complainant, K.T. gave evidence that she was sexually assaulted by the accused when she resided in the community of Aylmer, counts # 1 and # 2. She was in her mother’s room naked, and the accused was placing his finger into her vagina. While in this room, one of her neighbourhood friends came by and knocked at the door. The accused, “Pat”, went to the door and told this friend that she could not come out to play.

40Skipping ahead to Counts # 6 and Counts # 7, the complainant, K.T. indicated that sometime, while residing in Sarnia, she alleged that between July of 2003 and December of 2006, the accused pulled down her pants and “ate her out, licked her vagina”, while she was in her bed watching television.

41Counts # 8, # 9, # 10 and #11, were all counts where the complainant, K.T. indicated that during a time when her mother was away from home in Sarnia that while watching television in the living room with a blanket over them, the accused would pull his pants down and pout lotion on my hands and have me masturbate him until he ejaculated. Likewise, he did similar sexual acts on the couch in the living room where “he ejaculated sometimes, sometime he didn’t; he ejaculated more than two times, but I’m not sure how many times that happened”.

42Going back to Counts # 3, # 4, and # 5, they are said to be all similar accounts of times when the accused placed his finger insider her vagina. She stated “same thing, and he fingered me, put his finger in my vagina; this was going on for years”.

43Counts # 12 and # 13 are identical to Counts # 6 and # 7, in that K.T. again indicated that the accused “ate me out, licked her vagina” but added these other details as follows:

a) Her sister and mother was away;

b) The accused had his clothes on;

c) This type of sexual contact happened more than once.

44Count # 14 is identical to counts # 12 and # 13, except that he requested that after he performed oral sex on her that he asked her to perform oral sex on him, and indicated “see how far you can put it in your mouth; he put it in my mouth but I couldn’t do it, he couldn’t do it very far”.

45Counts # 15 and # 16 are identical to counts # 6 and # 7 except this time she was playing a video game when the accused is alleged to have “licked her vagina”.

46Counts # 17 and # 18 are similar to Counts # 1, # 2, # 3, # 4, and # 5, except with the added details as follows:

a) She was sleeping at the time and would wake up when he was fingering her;

b) She had no clothes on;

c) She was sleeping in her bed in her room;

d) This was a night and then he would go back to his room;

e) He never said anything and never touched me anywhere else;

47Counts # 19 and # 20 were identical to # 17, # 18, # 1, # 2, # 3, # 4, and # 5, except the complainant, K.T. indicated that sometimes she woke up and she was naked, “which was different from how I went to sleep; sometimes Pat would say in the morning, “you looked hot so I took your P.J’s off”.

48Counts # 21 and # 22 refer to times when she and her sister slept over with the accused after the separation and she indicated that they went into the tub nude but he had his shorts on and “I remember he’d be beside me in the hot tub and he’d touch my vagina under the water”.

49Counts # 23 and # 24 reflect three other times that the complainant, K.T indicated that she was touched by Pat in the hot tub. The clear meaning of “touched” as reference by K.T was in the similar manner to what she described in counts # 21 and # 22.

50Counts # 25 and # 26 refer to a similar sexual occurrence as counts # 15, # 16, # 6, and # 7, except that this occurred after the hot tub and in the basement when she had on a blanket or towel and he “ate me out, licked my vagina”.

D. Analysis of the Similar Fact Evidence as it Relates to the Adult Counts

51Complainants K.F. and J.T indicated that the accused touched their vaginas with his finger or the massager. In the former allegations, complainant, K.F. indicated that he digitally penetrated her on several occasions in the hot tub and on the couch, while the latter complainant, J.T. indicated he used a massager to stimulate her vagina.

52For reasons already expressed, I do not consider this evidence to be sufficiently established on a balance of probabilities to rely on it as any basis to support the allegations made by the complainants, J.T. or K.F.

53The evidence of S.C. is of a different and more significant import. What she indicated to R.C.M.P constable Butterworth-Carr about her allegation against her father has a resonance and similarity to what K.T. indicated she experienced firstly as a 5 year old and then later when she was 8-11 years of age.

54S.C. states about her alleged sexual assault in her written statement at page 4, questions 1, 3, 10, and answers 2, 4, and 10, on page 5, question 1 and answers 2 and 4, and on page 6, question 6 and answers 6 and 7 thereafter as follows:

1. A. Well I was sleeping and I woke up from him removing his finger from inside of me.

Q. O.K. Inside of you. Where - you have to b e a little more specific?

A. Like from my vagina.

2. A. It seemed like he had been rubbing me because I was quite tender.

Q. Tender in what area?

A. Inside my vagina.

3. A. Well from the last few years, I just remember being waken up a few times and having him there in my bed and me feeling like I was a bit raw.

Q. O.K. a bit raw in what area?

A. In my vagina.

55In addition, and consistent with what K.T indicated in her testimony, she described how the accused was “kneeling beside her bed” as did S.C. at page 7 of her statement when she stated “Like kneeling beside my bed”.

56The evidence of L.C. (nee L.C.) hereinafter referred to as L.C., was that she was born on […], 1963 and lived in the small community of Lively, perhaps 10 miles from the town of Copper Cliff and perhaps 15 miles from Sudbury in Northeastern Ontario. She would have been 8 years of age on […], 1971. This meant that she would have been in Grade 3 in 1971 and attending school in her neighbourhood before she went with her mother, who began teaching at Our Lady of Fatima elementary school in Whitefish, starting in grade 4, in September of 1971.

57She indicated that she usually walked home from school and that one day she was asked by the accused, who was sitting on his front steps, to enter the foyer of his front entrance where she was asked and she performed oral sex on the accused. While this is similar to what was described by the complainant, K.T., I would agree with counsel for the accused that there was nothing within the context of this sexual act, excepting the sexual act, that has in and by itself a similarity of circumstance or distinctiveness.

58On the other hand, she was young girl who resided in the proximate neighbourhood (3 doors away from the accused’s residence) and was enticed to engage in this sexual act. She did tell her mother that Pat did bad things to her after an incident in at Jimmy Roberts’ garage where they were asked to take off their clothes.

59P. Z. (nee P.B.), hereinafter referred to as P.Z., was born […], 1966. On […] 1971 she would have been 5 years of age. She indicated that on certain occasions when her mom went grocery shopping with the Cayens (her mom did not drive at that time), the accused would babysit her.

60She indicated that at these times in her living room, the accused would lick her private parts (“ she stated, that “he licked my labia”), that she would lick his genitals including putting his penis in her mouth, that he would put his finger in her vagina, and that she would watch as he ejaculated into the toilet in her bathroom.

61She believed this happened on more than one occasion and was told that he would tell her parents that she was bad if she told her parents. She was also present with L.C. in the Roberts garage when she was asked to disrobe. She then told her mother and the accused never babysat her again.

62This evidence has similar distinctive features to the description of what occurred with K.T. some 29 - 32 and 32 - 35 years later. There was digital penetration, oral sex, and the licking of the vagina (labia) of the young female complainant. There was no intercourse, no kissing, the accused was the babysitter or person in authority and the female child was residing in the residence.

63The evidence of K.A., (nee K.L.), hereinafter referred to as K.A., was that she was born on […], 1966 and was a second cousin to the accused, Patrick Cayen. She indicated that with her family, she often went to his residence in Lively to visit with his family and as well his camp (cottage) on Lake Penage. The Cayen family also often went to their residence in Copper Cliff.

64She describes that she performed oral sex on the accused when she was approximately 6 years of age and that this oral sex continued for some period of time, usually under the basement steps at his residence but also at her residence. She remembers her age as being approximately 6 years of age as she relates this time period to her friend in Lively, a P.Z., who was her age as well. Additionally, prior to having oral sex, excepting for the first occasion, she insisted that he wash his genitals.

65She was also touched by the accused on her genitals in the bunkbed at his camp, and that he stimulated her genitals. She indicated that he would also ejaculate in the sauna as if it was “like a game”.

66In addition, she indicated she masturbated him while in the bunkbed at the camp.

67Again this was a young female complainant, who often visited her second cousin, the accused, and was left in his care on many occasions, which provided the opportunity for these many sexual encounters. There was no kissing, no intercourse, no digital penetration, but there was masturbation as there was with K.T., oral sex as there was with K.T., and many, many opportunities to engage in sexual activities as there were with K.T.

E. Analysis of Similar Fact Evidence as it Relates to the Youth Counts

68The young female, K. T. engaged in the same similar sexual acts occasioned by the three female complainants over 30 years earlier. There was digital penetration and licking of the complainant, K.T.’s vagina as there was with the complainant P.Z. There was oral sex with K.T. as there was with P.Z., the complainant, K.A., and L.C. Throughout all of these many oral sex encounters, none of the young female girls were asked or consented to swallow the ejaculate.

69There was masturbation of the accused by K.T. as there was by P.Z., and K.A.

70Again as was the case with K.T., all of these three complainants were young females who either lived in the neighbourhood or visited with the accused on a regular basis and were either in his care P.Z., and K.A., or were proximate to where he lived. Furthermore, all of the sexual interactions occurred in the accused’s home or camp (cottage) or sauna, or hot tub.

71The only significant event with respect to witness S.C. as it relates to any youth offences was that both she and P.Z. indicated that they had been digitally penetrated. None of the other two young female complainants indicated that they had been digitally penetrated, although K.A. did indicate that the accused had “stimulated her genitals”.

F. Similar Acts that Occurred Within the Youth Offences

72In addition to the acts already discussed, both P.Z., and K.A., indicated that they were asked to observe the accused ejaculate. P.Z.’s testified that she was asked to observe him ejaculate in her bathroom and with respect to K.A. in the sauna at the cottage and into a towel or underwear under the stairs in the basement of the residence of the accused.

G. Analysis of the Evidence of the Complainants

1) The Youth Offences

73I will start my analysis of the evidence firstly with the complainant, P.Z.

74P.Z.’s evidence with respect to her allegations of indecent assaults and gross indecencies is graphic and vivid. She testified as a now 48 year adult woman who described what occurred to her as a five year old child. She had two siblings, a brother who was 15 years older and a sister who was 14 years older. Her sister normally babysat her but moved into Sudbury when she was 5 years old. The accused lived two doors down from her and began to babysit her whenever her mother went with his parents into Sudbury grocery shopping.

75The accused would put his finger into her vagina, lick her labia and have her suck on his penis. Afterwards, he would ejaculate in the bathroom. This happened more than once but all of the aforementioned incidents seemed to meld into one event. He would tell her that if she didn’t comply with his request that he would “tell my parents I was bad”.

76Eventually, she broke down on one occasion when her mother told her that Pat would babysit her and said that Pat had licked her down there. Her mother began to cry and eventually told ‘Auntie Pat’, the accused’s mother, that she would not be going grocery shopping and she was never left alone again with accused.

77On another occasion, P.Z. was with L.C., who was 3 years older and they were playing in a field close to their home when both Patrick Cayen and Jimmy Roberts asked them to go into Roberts’ garage. At this point, the boys then asked them to take off their clothes. Fortunately, a car drove into the driveway and they made their escape. P.Z. told L.C. that the accused had done other bad things to her and L.C. said that they should tell their mothers, which they did.

78Later when P.Z. was in her late teens, K.A. visited her and they both shared their sexual encounters with the accused, Patrick Cayen when they were young girls.

79P.Z.’s mother, J.B. testified that Patrick Cayen would babysit her daughter P.Z. when she went shopping with his parents. This babysitting by the accused happened more than two times. On the final occasion when J.B. indicated that the accused was going to babysit her daughter, she began to cry. She remembers that they were sitting in the living room and her daughter told her that “Patrick takes her pants down and licks her”.

80Mrs. B. said that she became hysterical and that she thereafter phoned Mrs. Cayen and told her that she would not be going shopping. She had little to do with Patrick Cayen thereafter. She also related the fact that both she and Patrick had exchanged small birthday gifts to one another as they both had the same birthdate, December 5^th. However, on the next occasion of their birthdays, she told Patrick Cayen that she would not accept his gift and she indicated that this was the last time she ever spoke to him.

81K.A testified that her sexual encounters with Patrick Cayen, her second cousin began when she was about six. She would climb into the bunkbed with the accused and he would stimulate her genitals and she would masturbate him. He would ask her to touch him down at the sauna at their camp and then he would ejaculate in the sauna. She indicated that at some point he asked that she perform fellatio on him, which she did as well.

82This act of oral sex occurred frequently in his home beneath the basement stairs. The first time she was completely offended by the taste and smell and insisted thereafter that he had to wash his penis before she gave him oral sex. She often would watch him wash his penis in his upstairs bathroom to ensure that it was clean or she would hear the water running in the upstairs bathroom. This oral sex also happened at her home on at least one occasion when the accused babysat.

83The ending of this ‘oral sex’ activity occurred as a result, believes K.A., when she and the accused were caught by his older sister Darlene when she would have been about 10 years old and the accused would have been about 18 years old. She had initially believed that the female party who caught them was the accused’s mother ‘auntie Pat’, but her sister, L.N., (nee L.L.) remembered that it was Darlene and not ‘auntie Pat’.

84On this latter point K.A.’s sister, L.N. testified that this encounter or discovery caused a rift in this very close family relationship. She remembered her mother crying and the contact between the families becoming much more distant.

85Later K.A. affirms that she contacted P.B. in her late teens and they discussed these sexual encounters with the accused and as well at College she referred to these incidents in one of her assignments.

86Much later in 1999, she and Pat met again in Ottawa. She had dinner with him and later they met at his residence and went to a park where there were swings. She brought up the subject of their sexual activities and more specifically oral sex and he denied any of those sexual activities.

87This was the last time she had contact with the accused until by chance discovered through the internet that he had been charged with a number of sexual assaults in Sarnia. Eventually, she and the other two complainants came forward to indicate what sexual activities they were involved in with the accused when he was a youth in Lively.

88The final complainant who testified was L.C. She indicated that while walking home from school one day, the accused was on his front steps and asked her into his foyer. He then asked her to place his penis in her mouth. She complied and thereafter felt embarrassed.

89She also recalls on a different occasion that P.Z. and she were playing in a field close to their homes. They were then asked by the accused and Jimmy Roberts to come into the Roberts’ garage. The garage door was closed and they were told to take off their clothes. They said no but we were being bullied. A car pulled into the driveway and they were told to go.

90L.C. indicated that she was terrified and she was very concerned for her younger girlfriend, P.Z., who she viewed as a little sister. Running home, P.Z indicated that “Patrick does things to me”. What she “expressed” to me, even remembering back 40 years ago, “was sexual, inappropriate”. I then told my mother and I told P.Z. to do the same.

2) The Adult Offences

91In addition, to what was indicated by K.T. in my analysis and determination of the evidence in support of the adult counts and my reference to similar facts evidence that tended to support those counts, I would indicate that but for the intervention of C.W., there was no triggering event that caused K.T. to reveal the allegations that are presently before the court.

92Although there was some suggestion that the motive for the revelation of these allegations against the accused were somehow connected to the denial of a trip to the Dominican Republic by K.T’s mother V.B. to attend the wedding of the accused’s daughter, I reject that submission. This is a non-sequitur principally because if it these allegations ever came forward, there would be absolutely no possibility that the complainant’s mother V.B. would allow her daughters to attend this wedding.

93Furthermore, any anger that is reflected in the texts about not going to the Dominican Republic were directed at K.T.’s mother, V.B. and not at the accused.

94In addition, I also reviewed all of the text messages between the complainant K.T and others and conclude that excepting some very raw language, there was nothing in these text messages that hinted at collusion, fabrication, or concoction.

95K.T. had revealed, during the summer of 2012, to both her sister J.T. through texting and to her friend, C.W., that she had been touched inappropriately by her dad (the accused) when she was a child. Nevertheless, C.W. knew that K.T. did not want any disclosure about what she had told C.W. to be revealed to her mother, V.B.

96During that following school year when K.T. was back in Sarnia, C.W. was concerned about her friend’s attitude as it related to her school attendance and her distance or demeanour generally. As a result of this concern, one evening in November of 2012, C.W. texted K.T.’s mother, V.B. and indicated that she should talk to K.T. about something that had happened to her.

97When her mother talked to K.T., she then revealed that her former husband, Patrick Cayen, had inappropriately touched her. The revelation by K.T. to her mother at this time does not hint at fabrication or contrivance but has a ring of genuineness (see the text between K.T. and C.W. thereafter).

F. The Evidence of the Accused and the W. (D.) Analysis

98The principles in the decision R. v. W. (D.) are as follows:

1. If you believe the accused, Patrick Michael Cayen’s evidence that he did not commit the offences charged, you must find him not guilty;

2. Even if you do not believe the accused, Patrick Michael Cayen’s evidence, if it leaves you with a reasonable doubt about his guilt or about an essential element in the offences charged, you must find him not guilty of that offence or offences;

3. Even if Patrick Michael Cayen’s evidence does not leave you with a reasonable doubt of his guilt or about an essential element of the offence or offences, you may convict him only if the rest of the evidence that you do accept proves his guilt on each of these offences beyond a reasonable doubt.

99The accused testified in course of this trial and frankly there was nothing so glaring or startling that would immediately have me reject his evidence. He specifically denied all of the allegations in both indictments. However, I noted, as was submitted to me by counsel for the Crown, that the accused answered some allegations with a category “absolutely not” but other allegations with “I have no memory” or “I have no recollection”.

100With respect to the allegations made by K.F., he denied these allegations again through the use of the expression “absolutely not”. On the issue of whether he was ever alone with K.F. on the couch, he indicated that “it could’ve happened” and “I have no recollection of ever being alone with her”. Also, he denied ever owning a massager or watching pornography.

101With respect to the complainants, K.T. and J.T., he acknowledged that he had been left alone as the person in authority to care for both J.T. and K.T. during times when the girls’ mother was working or in school. He indicated that he had no recollection of ever being in the hot tub with K.F. and his stepdaughters and then later he indicated that he “wouldn’t be anywhere near the hot tub with K.”

102He stated that in 1971 or 1972 he moved two doors down the same street in Lively (see examination-in-chief of the accused). Given the timing of the allegations of an indecent act with respect to the complainant, L.C., the accused would have been 12 in the spring of 1971.

103With respect to the allegations of K.A. and contrary to what the complainant, K.A. stated, the accused indicated that you could not see through the basement stairs because they were covered with some type of particle board. Although the accused stated that you could not go under the stairway as K.A. described when she testified about the frequency of oral sex under those same stairs, I received a different picture of this area from the accused’s sister, Darlene Patans.

104Clearly, her father was a neat person and would store his tools and other materials under these same stairs on shelves. The inference is that to access those tools etc. the accused’s father would have to have some means of access to this area or some walkway under these same stairs. Even the accused describes his father as being both organized and neat.

105In those circumstances, I do not consider the evidence of the complainant, K.A. as being necessarily incorrect. Furthermore, on balance, given the age of the complainant, K.A. at the material time, this detail of the whereabouts of the oral sex allegation as occurring in the basement is a more important detail than underneath the stairs.

106Finally, the accused does indicate that from the basement you could hear everything going on upstairs and in that sense it would have been an early warning that someone was coming to the basement and thus an ideal location to engage in sexual activity.

107The accused also indicated that their second house or the move to the second house on the same street in Lively did not have a usable vestibule or front door access as this area was sealed away by the accused’s father to store some of his brother’s gear or items. His sister, Darlene gave the same evidence. Again, if this is true then where could the oral sex have occurred with the complainant, L.C. who indicated that it had occurred in this same vestibule?

108L.C. describes walking home from school in the spring of 1971 when she was alleged to have been sexually assaulted. Her evidence with respect to moving to a different school in September of 1971 and travelling with her mom who taught there, I accept as factually correct.

109We know that the accused’s sister was married and out of a home in February of 1971. Considering all of the evidence, I am satisfied beyond a reasonable doubt that the move to this new home happened sometime in the spring of 1971.

110However, in reviewing the evidence of L.C. and the accused, what is still unclear is when was this vestibule closed off by the accused’s father? If this ‘sealing’ of the vestibule took place after the indecent act, then L.C. could be accurate in her description of the whereabouts of this indecent assault. In any event, on this allegation with L.C., the accused indicates that he absolutely did not perform this indecent act with L.C.

111Even if I am wrong about the timing of the sealing off of the vestibule and thus the allegation of oral sex could not have happened at that location, I do not consider the whereabouts of this oral sex allegation as significant enough to discount the vividness of the description of the event by the complainant, L.C. who discussed this incident as adult in referring to details when she was 8 years of age.

112The testimony of the accused is that he “had no recollection of babysitting whatsoever” and that it “wouldn’t fit to who I was”. He also indicated that he had no recollection that Mrs. B. and he shared the same birthday or exchanged gifts on their birthday, which was contrary to the evidence of Mrs. B., or that he had babysat her daughter on a number of occasions when she went shopping with his parents, or that he ever attended the B.’s residence.

113Again the accused has “no recollection” of any event in Jimmy Robert’s garage with P.Z. and L.C.

114With respect to the allegation that he “licked her” or that she viewed him masturbating into her bathroom toilet, he states that those events “absolutely did not happen”.

115With respect to the sauna at the camp, the accused confirms that there was no sink but there was a shower that was seldom used because of lack of pressure or, if the sauna was on, the shower would become too hot.

116On the issue of masturbating in the sauna as described by the complainant, K.A., or washing away the ejaculate, the accused indicated he had no recollection of ever doing either of those events. He also indicated that he had “no memory” of propelling his ejaculate “like a competition” while masturbating in the sauna in front of the complainant, K.A. and never babysat K.A. for any evening that K.A.’s mother and his mother ever went out to a sorority event.

117The accused had no memory of ever being under the bunkbed covers at the camp with K.A. or that they engaged in any activity under those same covers (which I infer from the nature of the question by counsel for the accused that he meant sexual contact). The accused denied any acts of oral sex under the stairs or that they were ever discovered to be engaging in any sexual activity under those same stairs.

118In answer to a more general question about any sexual activity with the complainant, K.A., the accused answered “I - no. There’s nothing in my mind that – no. Absolutely not”.

119On the issue of hair generally and pubic hair specifically, he indicated that he was not at all hairy but that K.A.’s father was quite hairy and had been caught inappropriately with his sister Darlene and eventually K.A.’s mother and her father split up over this incident. The inference that I take from those questions and answers is that K.A.’s reference to viewing thick pubic hair would or could be some inappropriate conduct with her own father and not the accused.

120With respect to the dinner and subsequent meeting with K.A. in 1999, where K.A. asked the accused if he remembered that she had given him a blow job, he indicated that he had indicated to her “that he had no memory of that, K.”.

121Although the accused admitted putting Peneten cream on his stepdaughters, including K.T., he indicated that he never did anything inappropriate sexually to these two young stepdaughters either in Aylmer or in Sarnia.

122He did indicate that on occasion because K.T. was having nightmares that he would enter her bedroom to wake her out of the nightmare and at times when she was hot would ask her if she wanted to take her T-shirt off or have a cold cloth applied to her.

123He indicated that the girls would not be able to sit in the hot tub and J.T. would sit on his legs or lap and that K.T. would sit on the apex of the lounge seat in the hot tub. The accused also indicated that at no time did either K.T. or J.T. “express any outward animosity towards you (meaning the accused)”.

124With respect to his daughter S.C., he did acknowledge that when she returned to his home after her allegations of an alleged sexual assault that she was allowed to secure her bedroom door but the accused indicated that S.C. had indicated to him that she never did in fact secure the bedroom door.

G. A Review of The Book of Authorities

125Before the completion of my analysis, there are a number of decisions that provide some guidance on both the evidence of the complainants and my review of the evidence given by the accused and his witnesses.

126In addition to the Handy decision and my reference to R. v. G. (L.), on the issue of collusion or concoction when determining the issue of similar acts, the recent decision of the Ontario Court of Appeal in R. v. A.M. provides some necessary insight into the manner in which a court should treat evidence that details historical sexual assaults (indecent acts or acts that were then described as acts of gross indecencies).

127Relying on the Supreme Court of Canada decision in R. W. (R.), the Ontario Appellate Court affirmed at paragraph 11, “that the credibility of an adult witness’s evidence describing what occurred to that witness as a child should be scrutinized as one would with any adult witness but that the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred”.

128This Appellate Court then went on to discuss the manner in which a trial court should look at a witnesses’ evidence where it contains inconsistencies during the trial and whether one could describe those inconsistencies as minor or significant.

129In accordance with that scrutiny, and for reasons already expressed, I could not resolve the major inconsistency in the evidence given by J.T. concerning her allegations about the manner in which she initially described the sexual assault by the accused. Her sworn statement indicated that the accused’s applied lotion to her vagina and lingered too long. Her evidence at trial was decidedly different. J.T. indicated that the accused inappropriately used a massager on her vagina while sitting with a towel or blanket on the couch. The accused was therefore found not guilty on those two counts.

130Likewise, in the Ontario Court of Appeal decision in R. v. J.J.R.D, Justice Doherty indicated that the trial court is to assess all of the evidence and provide reasons when accepting the complainant’s evidence over the explanation and the denial of the accused. Furthermore at paragraphs 48 and 53, Justice Doherty indicated about the reasoning of the trial judge concerning the accused (appellant) testimony as follows:

There was nothing in the substance of the appellant’s evidence or in the manner in which he gave his evidence which would cause the trial judge to disbelieve that evidence.

The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of the 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.

131Similarly, the decisions of the Ontario Court of Appeal in R. v. P.R. and R. v. T.H. also refer to the decisions in R. v. J.J.R.D. and affirm the aforementioned proposition.

H. The Decision

132I accept the evidence of K.T. as establishing the guilt of the accused beyond a reasonable doubt with respect to the adult 26 count indictment for the following reasons:

1. Her evidence given as a late teen but describing what she remembered about what occurred to her as a child was vivid and reflected certain triggering events that caused her to recall a certain sexual incident. For example, she remembers the accused putting his finger in her vagina, when they resided in Aylmer because, while this significant event was happening, a neighbourhood friend was knocking at the door. Similarly, she remembers waking up with the accused having his finger in her vagina kneeling beside her bed or waking up in the morning naked. Likewise, she remembers the first time she performed oral sex on the accused, took place just after one of many incidents when he had “ate her out”. Another sexual incident she remembers was when the accused licked her vagina after she had left the hot tub and was in her basement with only a towel on or was in her room playing a video game. She remembers masturbating the accused on the couch and using lotion to cause him to ejaculate. Bluntly put, because of the allegations of the frequencies of these sexual assaults by the accused, I place the description of certain ‘background’ details as a most credible memory assist.

2. The first revelation of the allegations of the sexual assault by the accused by way of texting to both C.W. and her sister J.T. was not prompted by any triggering event but suggests a spontaneous disclosure. While the content of the disclosure is not proof of the many incidents of the alleged sexual assaults, the methodology of the disclosure does have some significant resonance and the ‘ring’ of sincerity.

3. The manner in which C.W. contacted K.T.’s mother, V.B. out of sincere concern for the well-being of her friend even though K.T was reluctant to participate any of this type of disclosure and then the subsequent revelation to her mother and police involvement also has a ring of truthfulness.

4. There is no issue that the accused would have had many opportunities to engage in these many sexual activities with K.T.

5. The similarity of sexual acts between what K.T. experienced and the other complainants in the Youth indictment and the sworn transcript and video recording of S.C., adds considerable weight to a determination of proof beyond a reasonable doubt with respect to these adult offences occasioned against K.T.

133For those summary reasons, I accept the evidence of the complainant, K.T. as establishing the guilt of the accused beyond a reasonable doubt with respect to the 26 counts in the Adult indictment and thus correspondingly, I reject the explanation and denials of the accused.

134There will be finding of guilt of the accused, Patrick Michael Cayen on all 26 counts in the Adult indictment.

135I accept the evidence of the complainants K.A., P.Z., and L.C. as establishing the guilt of the accused beyond a reasonable doubt with respect to the 26 count Youth indictment for the following reasons:

1. Each of the three complainants in their testimony in recalling these horrific sexual incidents, did so with a vividness of detail and an exactitude of memory of what occurred to them that was overwhelmingly credible, persuasive and compelling evidence.

2. When P.Z. cried to her mother that she did not want to be babysat by the accused because “he takes my pants down and licks me”, we experienced this little girl’s stark terror. Likewise, the hysterical reaction of her mother who immediately cancelled her plans for shopping with the accused’s parents, her refusal to participate in any further exchange of gifts with the accused and her firm resolve never to converse with the accused again is significant testimony that left a powerful impression of truthfulness.

3. Even the common experience of P.Z. and C.L. who both stated that the accused and Jimmy Roberts had asked them to the Roberts garage and then told them to take their clothes off also resonated with the court as an absolute, to use an expression utilized by the accused, true account of what had happened to these two little girls. We heard the terror they experienced as they fled home and again the resolve to tell their mothers and never again have any interaction with the accused or Mr. Roberts. Even though this event was not and is not a count before me, I have no doubt whatsoever that this incident occurred precisely as these adult women recounted what had happened to them when they were so young.

4. When K.A. described as a five or six year old that she witnessed the accused ejaculating in the sauna as if his ejecting ejaculate was a game was a precise, exacting memory of an event that occurred in this little girl’s life. K.A. description of giving the accused oral sex in the basement and her revulsion of the taste of his penis such that any continued oral sex required that the accused wash his penis first and that she either had to see him wash it or hear the water running to ensure that he had complied with her request are not details that were forgotten but etched on her memory. Even her view of the accused as someone she felt great admiration towards, if not even a crush on as she grew older, makes perfect sense and is immeasurably believable to an impressionable little girl. This was her more mature cousin who she admired and was fond of and she wanted to please him. If performing sexual acts was what he wanted, clearly she would do those sexual acts to please him.

5. C.L. bewilderment that she gave oral sex to the accused in his vestibule when he invited her over and made that request, is not incredible but believable in the context of a little girl who was persuaded to do something she would not normally do by someone who was older and who she knew. Her expression of embarrassment thereafter and her description of the event persuade me beyond a reasonable doubt that this incident occurred and left her with this indelible memory.

6. All of these similar fact incidents that these three young female complainants alleged were perpetuated by the accused who knew them either from his neighbourhood or from frequenting his residence or camp add significant weight to the ultimate determination of guilt by the accused beyond a reasonable doubt.

136For those summary reasons, I accept the evidence of P.Z., K.A., and L,C. as establishing the guilt of the accused beyond a reasonable doubt with respect to the 26 counts in the Youth indictment and thus correspondingly, I reject the explanation and denials of the accused.

137There will be a finding of guilt of the accused, Patrick Michael Cayen on all 26 counts in the Youth indictment.

“Justice J.A. Desotti”

The Honourable Mr. Justice John A. Desotti

Released: January 9, 2015

Cases Considered:

R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R v. MacCormack, 2009 ONCA 72; R. v.Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716; R. v. T.C., 2005 ONCA 371, [2005] O.J. No. 24, 74 O.R.. (3d) 100; R. v. T.B., 2009 ONCA 177, [2009] O.J. No. 751; R. v. W.S., 2004 ONCA 33348, [2004] O.J. No. 4164; R. v. J.M., 2010 ONCA 117, [2010] O.J. No. 585; R. v. T.H., 2014 ONCA 906; R. v. A.M., 2014 ONCA 769; R. v. T.M., 2014 ONCA 854; R. v. K.G.B., 1993 SCC 116, 1993 CarswellOnt 76; R. v. S.R.C., 1997 BCCA 12475; R. v. D.A.T., [1995] O.J. No. 3940; R. v. C.J.S., [1994] P.E.I.J. No. 22; R. v. Daniels, [1995] S.J. No. 577; R. v. R.F.M., 2008 SCC 51, [2008] S.C.J. No. 52; R. v J.A., 2010 ONCA 491, [2010] O.J. No. 2902; R. v. J.J.R.D., 2006 ONCA 40088, [2006] O.J. No. 4749; R. v. A.S., 2002 ONCA 44934, [2002] O.J. No. 1950; R. v. P.R., [2014] O.J. No. 757; R. v. B.(G.), 1990 SCC 7308, [1990] 2 S.C.R. 30;

CITATION: R. v. Cayen, 2015 ONSC 63

COURT FILE NO.: 1733/13 and 1734/13

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

PATRICK MICHAEL CAYEN

REASONS FOR JUDGMENT

DESOTTI, J.