CITATION: R. v. Bent, 2016 ONSC 6388
COURT FILE NO.: CR-15-1051
DATE: 2016 10 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Sone, for the Crown
- and -
GARTH BENT
P. Derry & D. Harris, for the Defendant
HEARD: May 16 to 19, 2016 at Brampton
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and individuals identified in Exhibit #5, and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast or transmitted in any way.
Hill J.
INTRODUCTION
[1] Garth Bent pled not guilty to two charges of indecent assault of a male person, D.R.. Count # 1 alleged an indecent assault committed in the 2-year period ending December 31, 1980 at Mississauga. Count #2 alleged an indecent assault of this complainant at Huntsville within the 2-month period ending August 31, 1982.
THE PRINCIPLES
[2] The 46-year-old complainant, D.R., currently resident in British Columbia, grew up in Mississauga. He is a self-employed businessman.
[3] He first met Garth Bent when his mother had him join a youth group at St. Bride’s Church in Mississauga. To the complainant’s recall, he was then about 10 years of age and the accused was the director of the youth group.
[4] According to the complainant, he only attended the church youth group “a few times” on perhaps 4 or 5 week-day nights in all.
[5] The 56-year-old accused testified that he separated from his wife in 2011 and was divorced in 2016. He has an adult daughter and operates his own consulting firm in the construction field.
[6] Mr. Bent testified that while attending university he was employed at St. Bride’s Church as a part-time youth worker. This was during the time period of the fall of 1980 to September 1982. During this time, he was also a counsellor at the Ontario Pioneer Camp in the Huntsville area.
THE 2009 GUILTY PLEA PROCEEDING
[7] In his testimony in this trial, the accused acknowledged that on December 8, 2009, he entered pleas of guilt before the Ontario Court of Justice to three counts of indecent assault and one count of attempted indecent assault. The respective victims were C.P., B.L., D.V.D, and J.V.D. The factual basis of the pleas was set out in an Agreed Statement of Facts which the accused agreed, through counsel, to be accurate.
[8] The full Agreed Statement of Facts was entered as Exhibit #5 in these proceedings at the request of the defence. This court, in a preliminary ruling (2016 ONSC 3280) permitted the facts in the Statement, relating to D.V.D only, to be considered as similar fact evidence. A preamble to the Statement reads:
Facts appearing in bold underline are done so to indicate that Mr. Bent does not acknowledge these facts, but rather has no recollection of them.
Mr. Bent does agree that these facts could be proven beyond a reasonable doubt by the Crown if required to do so.
Mr. Bent is content that these facts be proven by way of including them in this agreed statement of facts rather than by calling viva voce evidence.
All other facts are acknowledged and admitted by Mr. Bent.
(emphasis of original)
[9] In his in-chief testimony, the accused agreed that prior to his guilty pleas he had read over the Statement and instructed Mr. Derry to sign it. He understood that the document was to be used in a court proceeding. To the accused’s recall, there were previous drafts of Exhibit #5 during plea negotiations between his counsel and Crown counsel during which some text was removed. He had input into the drafts during which some text was removed while other text was set in bold type and underlined. In cross-examination, the process was further explained:
Q. And I take it that the things that were changed to be bold and underlined were things that the Crown insisted be in there, but that you were not prepared to admit, that you did not recall?
A. Correct, I did not recall.
Q. ...you agreed to have certain facts be bold and underlined that would be in the agreed statement of fact even though you couldn’t admit them because you didn’t recall them...
A. Correct.
Q. ...is that right?
A. Yes.
Q. Okay. But you were careful to make sure that any facts you didn’t recall were bold and underlined in the agreed statement of fact, right?
A. Yes.
Q. Because you - you were being sure to accurately state what it was you remembered and what it was you did not remember, correct?
A. Correct.
Q. Okay. And everything in the agreed statement of fact that is not bold and underlined you admitted as true because you remembered it to be true, correct?
A. At the time, yes.
Q. If there was a matter you did not remember, you made sure it was bold and underlined...
A. Yes.
[10] The Exhibit #5 Agreed Statement of Facts described the transaction involving D.V.D in these terms:
When D.V.D was 13 or 14 years old he attended the youth group based out of St. Bride’s church located at 1516 Clarkson Blvd., in the city of Mississauga. The group was organized and supervised by the accused, Garth BENT who was a part time youth worker at the church. The victim also knew the accused through his attendance at the Ontario Pioneer Camp located at 1046 Clearwater Lake in Port Sydney, Ontario. This camp was run by the inter-varsity Christian Organization. The accused held a position on the staff at the camp and was the out trip director. He would plan and supervise extended canoe trips with boys at the camp.
… during July or August of 1982, D.V.D attended the Ontario Pioneer Camp located at 1046 Clearwater Lake in Port Sydney, Ontario. The accused, D.V.D and several other boys went on a nine day long canoe trip from camp. The accused would have a different boy sleep in his tent each night. D.V.D slept in the accused’s tent one night and in the morning the accused gave the victim a shoulder massage and then masturbated D.V.D to the point of ejaculation. The accused then requested that D.V.D masturbate him. D.V.D complied, and masturbated the accused to the point of ejaculation.
(emphasis of original)
THE MISSISSAUGA ALLEGATION
[11] The complainant testified that from time to time some of the kids, including his sister, who was also in the church youth group, were invited back to the accused’s Mississauga residence to watch TV or a movie or a video.
[12] In his in-chief evidence, D.R. described two incidents at the accused’s residence when, to his recall, he was aged between 9 and 11 years:
To watch TV or watch a movie or a video or something like that. And Garth would kind of fancy himself as a karate guy and he would always try and box and fight with you and wrestle with you. And there was two incidences when he would get you in a wrestling hold and start tickling you and kind of roughhousing with you, and then his hand reached down and grabbed my genitals outside the clothing.
He would get you - he would start to wrestle with you, kind of fake punch, karate kicks, so on. I just, you know, it was pretty fun at the time. It was - trying to wrestle this big older guy, and he’d get a hold of you and put you in some sort of wrestling position. I recall one term he used called the fireman - fireman move, where he takes your hand and pulls it down to the - pulls you down to the floor and put your arm between your legs and you basically are submitted that way. And then we would just be wrestling, but the one particular time he grabbed onto my genital area and I became very uncomfortable and said I’m done, stop.
[13] In cross-examination, the complainant agreed that he gave this description during his preliminary inquiry testimony:
“So - so His Honour hasn’t seen your statement. We need you to give us whatever, what detail you can about where his hands would go.” Answer, “Sure. So he’d get you in a submissive hold or whatever and tickle you and it all, like, you know, like I said in my statements, I’ve had uncles do the same thing to me, but their hands wouldn’t where Garth’s went. They’d go between your legs or something like that. And he’d call it the fireman hold or something like that. And then he’d grab a hold of your genital area....”
D.R. testified at trial that his reference to “or something” did not mean that he was unsure that his genital area was grabbed.
[14] The complainant could not recall who else was present on the first occasion. On this occasion, the accused had “his full hand … cupped around” the complainant’s “genital area” for about 2 or 3 seconds over his clothing. When he then became very uncomfortable saying “I’m done”, the accused let go of him laughing and stating, “okay”. It seemed that “a very unnatural thing” had happened, completely different than ordinary wrestling.
[15] When, during the second incident, the accused cupped a hand over his genital area, the complainant recalled again feeling very uncomfortable. He moved away saying “I’m done, stop”. Again, the accused stopped quickly and willingly. D.R. was unable to recall at trial whether anyone else was present.
[16] Cross-examined at trial on his June 17, 2015 preliminary inquiry testimony in which he stated in respect of the number of incidents at the accused’s home that “there was multiple – there was at least two”, the witness indicated that “I should have referred to it as two I guess”. D.R. conceded that because he was speaking of events nearly 30 years ago, it was possible that his memory was not very clear. In his testimony, the complainant acknowledged with respect to the two alleged incidents at the accused’s home that he had no recall who he had gone with, whether his sister was there, how many persons were present, what other adults may have been present, whether other youths were present wrestling with the accused, or how he got home. D.R. had no recall of any other adult or older teen residing with the accused. In re-examination, the witness stated that he was “very clear” as to what happened to him although over the many years of trying to forget the “situation”, some of the less important details have been pushed away.
[17] D.R. testified that while he thought about the two incidents in the 1980 to 1982 time period, he spoke to no one about what happened.
[18] The complainant was further cross-examined as to whether any genital touching, such as may have occurred, could have been accidental:
Q. And you agree that in respect - retrospect, what he did there could have been an accident?
A. I don’t agree to that, no.
Q. Okay. I’m going to take you back to the preliminary hearing again.
MR. DERRY: Please, Your Honour, this is the same date, on the June date in this building.
Q. Okay. This is me questioning you at the bottom, Your Honour, line 25. Mr. Derry, “Okay. I may come back to something later, D.R.. When he touched you when you were 9 or 10, you say he touched you, could it have been accidental?” Answer, “It’s possible.” Did you make that answer to that question?
A. I might have if it’s in there.
MR. DERRY: Page 65, Your Honour, line 6.
Q. Question, “The two wrestling bouts, whatever you want to describe them as being, each time when you wrestled he could have accidentally touched you, is that right?” Answer, “There’s a possibility of that.” Question, “And when – and whatever, once you said, stop, I’m done, I’m done, when he’s tickling you or whatever...”
THE COURT: And whatever.
MR. DERRY: Q. “...he stopped....”
MR. DERRY: I’m sorry, Your Honour?
THE COURT: Tickling you and whatever.
MR. DERRY: Sorry, “tickle you and whatever, he stops, isn’t that correct?” Answer, “Correct.” Are those answers - are those answers that you gave at the preliminary hearing, correct?
A. Yes.
Q. So effectively you repeated twice it could have been an accident, do you agree with that?
A. Sure.
Q. And you agreed it might have been an accident, correct?
A. I guess it’s possible.
[19] When, in re-examination, Crown counsel asked the complainant what he meant when he stated in cross-examination that the touching may have been an accident, the witness responded:
Q. Do you remember that evidence that you gave?
A. Yes.
Q. What did you mean by that?
A. That it could have been an accident?
Q. Yes.
A. I don’t believe I agreed that it could have been an accident. He said is it possible that it could have been an accident, and I - I believe anything is possible, but it’s not how I felt.
[20] According to the accused, as a youth worker at St. Bride’s Church he developed programs for three groups – junior, senior high, and college/university/career age. The junior group had 13 and 14-year-olds. The senior high were aged 15 to 18 years. There were no programs for kids aged 9 to 11.
[21] Mr. Bent testified that he rented a townhouse on Bromsgrove Road together with a roommate, Steve Gloss, a university student too, with whom he had roomed previously. At a point, in 1980-1981, Paul Hillier, a 16 to 17-year-old high school student, was also living in the residence as his parents could no longer manage him. He was into body-building and had a brown belt in karate.
[22] The accused testified in-chief upon the subject of youths coming back to his townhouse:
Q. Okay. Would you from time to time, after the youth center activities, invite any of the people there back to your townhouse?
A. Occasionally older kids might come to watch a hockey game or a movie, but most commonly the reason for the older age group to come over was the - the student advisory council that we had would come over for planning meetings to plan future events.
Q. By older, Mr. Bent, can you tell His Honour what age group we’re talking about?
A. That would be high school. Those kids would have all been in - in Grade 10 - well, Grade 10, 11, 12, 13 at that time.
Q. Did you ever make arrangements for any younger people to drive - to get to your townhouse?
A. I don’t recall ever doing that, no.
Q. Okay. Do you have any recollection of any young people in the range of 9, 10, 11 years of age coming to your house during those nights when you had people back?
A. No, I have no recollection of that. I never worked with kids that age group.
[23] The accused testified that he never had any interaction with the complainant at his townhouse. In addition, he had no recall of ever wrestling with any particular young person at his residence. In his in-chief testimony, the accused stated:
Q. D.R. has said that on two occasions at your residence in Mississauga, he attended there, engaged in a form of wrestling. You put submission holds on him and briefly touched his genital area outside the pants, did that happen?
A. I do not recall either of those incidents ever happening, no.
Q. Is it that you don’t recall or they didn’t happen, I’m sorry?
A. They didn’t happen.
[24] Pressed on the subject in cross-examination the accused stated:
Q. While you were - while you were living at - at the residence in Mississauga I think you said you would occasionally have some youth to watch a hockey game or a movie?
A. I - I recall vaguely that that could have happened, yes.
Q. I suggest to you that it did - that you did have youth over to watch movies, play video games?
A. I - I can’t recall that for certain, but it could have happened.
Q. Okay. Do you - do you remember D.R. [D.R.’s] sister?
A. Yes.
Q. What was her name?
A. I can’t recall her first name.
Q. Was she older than D.R. …?
A. She was older, yes.
Q. And do you remember her coming over to your house?
A. Not - not specifically, no. She would have been in the older youth group.
Q. … can you dispute, or is it just that you don’t remember D.R. [D.R.’s] sister coming to your residence?
A. I don’t recall...
Q. Okay.
A. ...specifically.
Q. It could have happened, but you just don’t recall.
A. There’s a 100 kids plus.
Q. But coming to your residence there would - they wouldn’t have all come to your residence?
A. No, no, geez, no.
Q. What - so I take it you can’t tell the court what age the children would have been who came over to watch hockey or a movie because you don’t recall for certain that happening, correct?
A. They certainly wouldn’t have been younger than an age group I was working with.
Q. Okay. So not younger than what age?
A. Thirteen.
Q. Okay.
A. And most likely were high school age.
Q. Which is what?
A. Grade - that would be Grade 10 and above, 10, 11, 12, 13. So Grade 10 is what?
Q. Fifteen, sixteen?
A. Fifteen, sixteen, seventeen, eighteen.
Q. And - and so must likely the - the children who would have come over would have been 15, 16 plus, correct?
A. Correct.
[25] Under further cross-examination, the accused gave this response:
Q. And my suggestion to you is, D.R....
A. Yes.
Q. ...coming to your house with his sister, you could have just forgotten about that, is that right?
A. Correct. I don’t recall it specifically them coming over.
Q. And - and in fact, my suggestion to you is you did - you did have a wrestling with D.R. in which you touched his genitals....
A. No, no, I have no recall - no recollection of that at all. And if D.R. wrestled with anyone at my place based on his description of being someone who would like to show off all of his karate moves, et cetera, that certainly wasn’t me.
THE HUNTSVILLE ALLEGATION
[26] D.R. testified that in the summer of 1982, when aged 13 years, he attended the Ontario Pioneer Camp in Algonquin Park for 2 to 3 weeks. At first, there were a few days of white water training and learning camping safety rules and techniques, before setting out on a canoe trip on the Petawawa River.
[27] To the complainant’s recall, a few friends from his neighbourhood went on the same trip including James Cowan, John Watt and B.L.. In cross-examination, the complainant described B.L. as someone he knew from the neighbourhood but not, like the others, a friend he would call on the phone. The accused was the head counsellor for the trip.
[28] Cross-examined as to what his reaction was when he enrolled in the Ontario Pioneer Camp, the complainant stated that, although he felt “uncomfortable”, he spoke to no one about his feelings.
[29] According to D.R., there were 10 campers on his canoe trip accompanied by the accused and two other boys, twins from Michigan, who were 18 to 21 years of age, acting as counsellor helpers. In cross-examination, the complainant testified that there may have been more than these three counsellors.
[30] D.R. described to the court a typical day during the 1982 canoe trip. After paddling and portaging during the day, a campsite would be set up. There was a campfire, a meal, fishing, etc. before going to bed in tents.
[31] Asked in his evidence in-chief to describe the group’s sleeping arrangements, the complainant stated:
Q. And how was it arranged who would sleep in what tent?
A. That was also changed from night to night, and then it just seemed that Garth wouldn’t have any partner in his tent and he would say to someone, okay, you’re in my tent tonight.
Q. Did you at some point share Mr. Bent’s tent?
A. Yes.
Q. Tell us about how that happened?
A. He would choose you. He chose me and said tonight you’re in my tent. So that’s - that’s what I did.
[32] In cross-examination, the complainant gave this evidence:
Q. And you had said that he would select or choose you to come into his tent?
A. He would select a camper.
Q. I’m suggesting to you that on any given night of the number of nights you were there, there were at least three people in the tent to sleep, would you disagree with that?
A. Yes.
Q. Are you certain of that?
A. Yes.
[33] D.R. testified that it was possible that the campers, not the counsellors, were generally free to choose where they wanted to sleep. He may have tried to tent with Watt and Cowan. The complainant was unable to recall the number of tents on the 1982 trip and was unable to identify the tents depicted in Exhibit #3 as those used on the canoe trip. D.R. was unable to agree, one way or the other, whether four tents were erected each night of the trip.
[34] The complainant’s direct testimony described the first alleged indecent assault in these terms:
A. That particular night Garth was in the tent – or the tent with me, beside me and then he tried to grab my shoulders and basically try and massage my neck and my shoulders and just saying, you know, you must be super tired from all that paddling, or - and then - then he would start moving his hands down my back. At one point he asked me to take my shirt off. And - and then he moved further down and then he took his hand and put in on my penis. And then created sort of a - a masturbation motion. And then I became very - I was shocked first of all, scared and then I just recoiled or backed away or kind squirmed away and got away and he stated, you know, what’s the matter? You know, when he grabbed my penis he said, “Whoa, what’s this?” at one point. And then I was just - I was – I – it’s very difficult to put into words how I felt. I just got away from the situation and rolled over and said I’m going to bed.
Q. Sorry, I heard you say, I just got away, rolled over, and then your voice trailed off. I didn’t catch that.
A. I just kind of zipped up my sleeping bag and got away from the situation that was occurring.
[35] D.R. testified that when the touching began he was on his stomach with his sleeping bag unzipped covering him like a sheet. After removing his shirt as directed, in a casual non-aggressive approach, the accused pulled his pajama bottoms down a little bit before reaching his hand between the complainant’s legs. As he remained “[s]till sort of on [his] stomach”, the accused performed “[l]ike a masturbation movement … rubbing for about three seconds” until the complainant moved away. At trial, D.R. could not recall what, if anything he said after the accused asked, “What’s the matter?” in an apparent attempt “to console the situation”.
[36] D.R. adopted his preliminary inquiry evidence that the entire massaging incident may have lasted 10 to 15 minutes. At trial, the complainant was unable to recall what his reaction was when he was asked to sleep in the accused’s tent. He may have felt uncomfortable but could not say in his 2016 testimony.
[37] As to his in-chief evidence that the accused said at one point, “Whoa, what’s this?”, the complainant said in cross-examination that he had always remembered this – it remained “etched” in his brain – “I can still hear it”. The complainant was extensively cross-examined as to whether or not he had reported this fact to the police in his April 26, 2014 videotaped statement. The complainant provided a number of responses. He could not recall if the police asked about conversation between him and the accused although this may have occurred. If questioned about this, although he tried to be clear and accurate, the phrasing of the question may not have invited this disclosure or he may have overlooked reporting this detail – “I may have missed it”. The complainant also answered that over the years he has made an effort to forget what happened rather than “[d]well on it”. Although he has tried to suppress it, it comes to the surface. D.R. acknowledged that, with the passage of time, certain details of what occurred are clearer than others.
[38] In his testimony, the complainant agreed that this exchange occurred in his April 2014 videotaped statement to the police:
OFFICER: Was he talking to you at all during that time?
COMPLAINANT: Um, um maybe. Nothing to in depth.
OFFICER: Nothing that stands out?
COMPLAINANT: No.
Under cross-examination in this trial, the complainant gave this evidence:
Q. Question, “So he’s taking his time with the massage?” Answer, “Yeah.” Question, “Before you?” Answer, “Yeah, trying to make everything seem nonchalant.” Question, “Mm-hmm.” Answer, “Lackadaisical, you know.” Did you make those answers to those questions?
A. Yes.
Q. Question, “Was he talking to you to at all during that time?” Answer, “Hmm, hmm, maybe. Nothing too in depth.” Answer – sorry, question, “Nothing stands out?” Answer, “No.” And then he goes on to the second incident.
Question, “Okay. And the second time, outside of it being a lot shorter, when you start ….” It says when you started fondling you. I think that must be a typo. Answer, “I do – I do remember him saying one thing to me though that I was – I was kind of creeped me out that for whatever reason I just remember him going like – massaging you, he goes, ah, you’re super tense.” Answer, “Okay.” And it says inaudible. “No kidding.” Did you make those answers to those questions?
A. Yes.
Q. They were accurate, correct?
A. Yes.
Q. So when P.C. – Detective Parkins questioned you about conversations and comments that you say Mr. Bent made to you during the course of the incident you said, Nothing too in-depth.” And he says, “Nothing stand out?” You answer, “No.” Yet you tell us today that this was etched into your brain?
A. Correct, yeah.
Q. So you chose for whatever reason not to tell the officer?
A. As I stated before, I don’t know why it didn’t come up, but certain things come up from time to time and I remember, and some I don’t.
[39] D.R. told no one in the morning about what had transpired. Asked why he remained silent, the witness stated:
I just remember the feeling of being kind of in shock and scared and disbelief … so I didn’t know what to do … we were in the middle of nowhere.
[40] The complainant stated in cross-examination that, to his recall, during his stay at the camp there were no rumours or comments about the accused’s creepy behaviour.
[41] In anchoring the timing of the second alleged assault during the canoe trip, the complainant testified that it was a “number of nights” after the first occurrence when the accused again asked him to sleep in his tent “as it was his turn”. At trial, the complainant could not recall how he felt when asked a second time to sleep in the accused’s tent. This second assault was described in these terms in the complainant’s in-chief testimony:
A. My - it was on my sleeping bag again in pajamas. He tried to grab my shoulders to give me a massage again. He started rubbing my neck and then started to work his hand – Garth’s hand down my back, and then he tried to slide his hand underneath the bottom of my pajamas again. And then that’s when I - he was trying to grab my penis again I guess and I - I stopped him and I just went back to I guess curled up in my sleeping bag again and didn’t let it go as far as the first time.
Q. So how far did it go the second time?
A. His hand was on my buttocks underneath the pajamas.
In cross-examination, these questions were asked:
Q. As well, you told this court that he pulled – he, being my client. Your memory is that he pulled your pajamas partway down your buttocks, do you remember saying that?
A. Which instance?
Q. The second.
A. The second. Okay.
Q. And fondled your buttocks?
A. Mm-hmm.
THE COURT: Sorry, I didn’t hear you.
A. Yes.
MR. DERRY: Q. Was that accurate?
A. I believe so, yes.
Q. Was that relevant to the reasons you were seeing Detective Parkins to tell him what happened to you?
A. Yeah. Yes.
Q. Then why didn’t you tell him during the course of that lengthy interview that he had – that supposedly Mr. Bent had done that to you? You didn’t tell him?
A. I thought I did.
Q. Well, I’m suggesting you didn’t.
A. Okay.
[42] The complainant informed the court that when the accused’s hand was on his buttocks, he managed to roll away into his sleeping bag to stop further touching.
[43] D.R. testified that this incident, like the first, occurred when it was dark shortly after going into the tent with the accused.
[44] At trial, the complainant adopted his preliminary inquiry testimony that during the touching the accused said something that “creeped” him out – “Ah, you’re super tense”.
[45] D.R. testified that he never had a conversation with the accused about the camping trip assaults.
[46] In his in-chief testimony, D.R. identified a group photo (Exhibit #1) of the 1982 canoe group first period attendees which he had kept in a photo album before providing it to the police. The witness identified himself in the photo as well as the camp director, Cowan, Watt and B.L., and Garth Bent with a moustache. In cross-examination, the complainant stated that there was no uncertainty as to the individual he identified as Garth Bent in the photo.
[47] During cross-examination, D.R. was shown an Ontario Pioneer Camp group photo for 1982 second period (Exhibit #2) in which he identified the accused – a person with a moustache and a beard. There was no doubt. In the witness’ opinion, the individual he identified as Garth Bent in each of Exhibit #’s 1 and 2 looked the same.
[48] Mr. Bent testified that he first attended the Ontario Pioneer Camp in 1971 as a camper. He subsequently became a leader-in-training and then a counsellor. During the summer of 1981, he was put in charge of some short canoe trips.
[49] In 1982, on the accused’s evidence, he acted as the trip leader of the “woodsman canoe trip” first period in the first two weeks of July which was 10 days and 9 nights on the water away from the Ontario Pioneer Camp. Steve Pellow and David Willoughby were counsellors on this trip with 10 campers including the complainant.
[50] On reviewing the Exhibit #1 photo, the accused testified that he was not in the picture. In the summer of 1982, he always had a full beard.
[51] According to the accused’s evidence, for the 13 persons on the first period canoe trip there were six canoes and the four tents depicted in the Exhibit #3 photo which were individually waterproof-packed in plastic garbage bags and in turn packed into a single tent pack which was all that was required to accommodate the group. The pack held exactly four tents and the camping grill. A fifth tent would not fit in the pack. Although the tents were described as 4-person tents, they comfortably held 3 persons but a fourth camper could be squeezed in.
[52] Mr. Bent’s recall is that with three paddlers in one canoe and two in each of the other five canoes, the canoe teams remained relatively stable throughout the trip. He paddled each day with Robert Andrus as his bowman. The accused testified that some campers might turn in early at night. In the morning, counsellors “would typically get up first”.
[53] In his in-chief testimony, the accused described the tent sleeping arrangements:
Q. People are as you - you used the phrase, they start to dive into tents. Before they go to the tents, what happens in terms of is there an assignment of kids to particular tents, or – in other words is it structured, or is it lose?
A. There was no structured requirement as terms of where people slept. Kids were left to figure that out on their own. Some of the kids had friends come, you know, prior to arriving at camp. Some kids they made friends during the orientation period. But there was no set or required regiment for who you slept with or who you didn’t sleep with, and typically after two or three nights that would sort itself out, friends would chum together or whatever, but no one, certainly not myself, ever - ever dictated where a child should sleep.
Q. Okay. In the - in the nine nights that you’re out there, 10 nights, whatever number it was, if you - do you ever remember getting into your tent with only one camper or counsellor in there?
A. No, I don’t recall that, no.
Q. So on the nights that you were there...
A. Yes.
Q. ...when you went to sleep, how many people would have been in the tent that you occupied?
A. Typically, three or four.
Q. Do you have any kind of recollection as to who would normally – normally, and I appreciate its 34 years ago, sleep in the tent that you occupied, if anybody?
A. Well, certainly I have very clear recollections that Rob Andrus, who paddled with me the entire trip, slept in my tent every night.
Q. Every night?
A. Yeah.
[54] Testifying in-chief, the accused stated that the sexual assaults described by the complainant in his evidence, as occurring during the canoe trip, did not happen. In cross-examination, the accused gave this evidence:
Q. Isn’t it possible that the events described by D.R. occurred and you simply don’t remember them?
A. No, they did not occur.
Q. How can you say that?
A. Because I know who I touched and I know who I didn’t. And I came forward prior to any legal action of more than 25 years ago and went to those individuals. D.R. was not one of them, or I would have gone to him.
Q. Are - are you certain that you went to everyone who you touched?
A. Yes.
Q. Okay.
A. Very certain.
Q. So it’s not - I just want to make sure I have the distinction right. It’s not that you don’t remember touching anyone else. It’s that you didn’t touch anyone else, right?
A. Correct.
[55] Cross-examined as to what occurred with D.V.D on the early July 1982 canoe trip of which D.R. was a part, the accused gave this evidence:
Q. Tell me what happened on the canoe trip with D.V.D.
A. Well, I think it’s pretty clearly outlined in the - in the statement of facts which I agree to. I massaged him and masturbated him.
Q. Where – like, where were the two of you?
A. In - in a tent.
Q. When did that happen?
A. To the best of my recollection at - at - at night at some point, or early morning.
Q. Were you and D.V.D. alone in the tent when that happened?
A. That I can’t recall for certain.
Q. Why did you do that?
A. Why?
Q. Yes.
A. At that time in my life I was confused and that confusion led me to experiment.
Q. Did you have an urge to do that?
A. An urge as in a - define what you mean by urge.
Q. Well, did you want to do it when you did it?
A. It was a curiosity would be the best descriptive I could give to it.
Q. I suggest that you knew at the time that it wasn’t the right thing to do?
A. Correct.
Q. And I suggest that you couldn’t help yourself but do it when you did it?
A. I wouldn’t necessarily agree with that.
Q. Okay. So you just chose to do it despite knowing that it wasn’t the right thing to do?
A. I gave in to the curiosity, yes.
[56] In cross-examination, the issue of sleeping arrangements was revisited:
Q. Regarding your sleeping arrangements in the tents, I think I wrote down - I think I - I captured your evidence correctly that Rob Andrus slept in your tent every night, is that right?
A. That’s - that’s what I recall, yes.
Q. And it’s your evidence that you never slept alone with Rob Andrus in the tent, correct?
A. Correct.
Q. Do you recall who else slept in your tent on each night?
A. Not specifically, no. It - but I - I can - there were certainly more than one - one boy in my tent every night.
Q. And you testified, if I’m - if I wrote it down right, that you never dictated where a child should sleep, correct?
A. Correct.
Q. That the kids were left to figure that out on their own?
A. Correct. Yeah.
Q. And it would usually sort itself out after, I think you said, two or three nights?
A. Sometimes it sorted itself out after the first night.
Q. Okay.
A. It - you didn’t see - there wasn’t a lot of moving around, but there was no one prohibiting them from moving.
Q. Okay. So typically things would sort themselves out, meaning there would be some stability, is that right?
A. Correct. Yes.
Q. And while it wasn’t a rule, after things sorted themselves out I take it that generally everyone would stay in the same tents with their friends or...
A. Generally, yes.
Q. There was no rotation for instance?
A. No.
[57] Subsequently, the accused provided this evidence:
My testimony is, is that there could be a possibility that there was a boy – a different boy or boys in my tent from time to time.
[58] As to whether the complainant shared his tent on any night, the accused stated:
I don’t recall that specifically, no.
I don’t recall.
[59] Mr. Bent acknowledged in cross-examination that after many years some details have become hazy:
Q. The details surrounding the incident are hazy after this many years, do you agree with that?
A. Which details are you referencing?
Q. Well, for instance, who was in the tent with you aside from D.V.D., if anyone?
A. Yes, correct - correct.
Q. Whether you removed D.V.D.’s....
A. But there’s no doubt in mind that there was more than one boy that slept in my tent every night. That’s very clear. That’s not hazy at all.
Q. Do you remember whether there was more than one boy in the tent with you when you massaged and masturbated D.V.D.?
A. That I don’t recall specifically.
Q. Do you remember whether you were worried that somebody in the tent would notice what was happening?
A. I don’t recall that specifically.
Q. I suggest to you that if there had been another person in the tent with you and D.V.D, you would have been worried about being caught, do you agree with that?
A. Not necessarily. It’s - I mean I - I really don’t recall a) that there was anybody in the tent or not in the tent. So it’s - but I think, you know, most people naturally, you know, wouldn’t - wouldn’t - wouldn’t want to get caught doing something they know is wrong. But no, I don’t recall specifically in this case.
Q. Okay. I see, it’s - you agree with me it stands to reason that you - the chances of being caught are higher if there’s another person sleeping in the tent with you?
A. I suppose.
Q. But that’s not something that - that you remember being on your mind at the time, correct?
A. Well, I don’t recall whether there was - there was or there wasn’t another person in that - in the tent.
Q. Okay. So tell me if you agree with this, either there was another person in the tent when – or more, possibly two, would you agree with that?
A. I would say a maximum of four, yeah.
Q. Okay. Total four. So you, D.V.D. and up to two other people, zero, one, or two?
A. Yes.
[60] At trial, the accused was unable to recall what he or the V.D. boy may have said at the time of the incident. He could not recall the youth’s physical position when he began to massage him or to masturbate him. The accused informed the Court that the sexual touching occurred “at night at some point, or early morning”. The Exhibit #5 Agreed Statement of Facts stated that the assault was in the morning.
[61] In his testimony in this trial, the accused agreed that he did not seek to have his counsel communicate to the court that the sentence in the 2009 Agreed Statements of Facts reading, “The accused would have a different boy sleep in his tent each night”, should be eliminated or placed in bold, underlined type. The accused further stated in cross-examination:
Q. And I suggest to you that the reason you didn’t insist it be bolded and underlined is because that is the truth. The accused would have a different boy sleep in his tent each night?
A. Not so.
Q. Okay. So you - you....
A. Let me just correct that.
Q. Okay.
A. As I said, it’s possible there could be different boys in each tent every night.
Q. Okay. That’s....
A. But if you’re implying a one on one different boy every night, never took place. The mathematics doesn’t work. Nothing works. It just - there just wasn’t physically space to inconvenience others that much. Okay. So possibility different boys in the tent every night, yes.
Q. That is not, however, your recollection, correct, that there were different boys in the tent each night?
A. No, I can’t be certain of that. Like I’m - I’m - I’m saying that - that - that yes, there was a possibility there could have been a change in the sleeping arrangements, but - but – but, you know, it didn’t - things as we’ve discussed earlier typically settled down in a day or two with who slept with who.
Q. It’s not your recollection that a different boy slept in your tent each night, correct?
A. It’s not my recollection that...
Q. That....
A. ...a different boy – as in I could name the different ones that slept in my tent every night, is that what you’re asking?
Q. So - no. So you do not have a - a memory of a different boy sleeping in your tent each night?
A. No, not that I could specifically name...
Q. Okay.
A. ...right. I...
Q. And....
A. ...certainly have a memory that Robert Andrus slept in my tent, and I have a memory of D.V.D being there at least one night. I’m not disagreeing with that. But in terms of - and I recall how many tents there were and how many staff and campers there were and that there had to be three to four campers or staff in every tent to make things work.
[62] The accused stated that this sentence, unlike the other sentences in the relevant paragraph, contained “an error”:
Q. Tell us what the error is.
A. Well, the - the error is that - the implication there in that sentence is that I somehow directed boys I would suggest to sleep in my tent and it - in one sense it may be possible. There were different boys there every night. As I have told you before, there was no set sleeping arrangement, but at the time when - when this was - was - the statement of facts was written, I was more focused on getting through this process and not causing any additional hurt to D.V.D, and less focused on a minute detail like that. That was minute in my mind compared to the guilty plea.
I’m new to this type of process, et cetera. So to me I would read that at that time and it - it seemed like, okay, if that’s what he said, you know, I’m not necessarily going to disagree with D.V.D on that. Again, D.V.D and I had face to face meetings on several occasions and counselling together. And I know where we stood. And I was not about to necessarily challenge him or put him in a position where he would ever have to come into court or testify and be hurt by this kind of process. So from that perspective I allowed that sentence to remain. But, you know, that wasn’t the practice and it did not happen on that trip.
Q. … Do you agree with me that the sentence as it’s written here carries an implication that you would direct who would sleep in your tent, which boy would sleep in your tent?
A. Sorry, I’m just looking for the reference there.
Q. It’s the third line on paragraph three, “The accused would have a different boy sleep in his tent each night.”
A. That’s certainly the undercurrent of that sentence, yes.
Q. Okay. And that is certainly not your recollection, correct?
A. Correct.
Q. Because it’s your testimony, your evidence that you never directed any boy to sleep in your tent?
A. Correct. Also David Willoughby’s testimony.
Q. Do - do you agree with me that that sentence makes it sound like - that sentence makes it sound like you were going through a sequence of boys and having them sleep in your tent?
A. No, I disagree with that.
Q. Well, why does the sentence not imply that you would - you were going through a sequence of boys and having them sleep in your tent?
A. First off, I didn’t direct boys to sleep in my tent, and I’ve stated that before. Boys were free to sleep wherever they wanted to. So if you’re - if the implication here I was directing, that just didn’t happen.
Q. Okay. My - my suggestion is that this sentence makes you sound bad, right?
A. Depending on how you interpret it, yes.
Q. Okay. It makes it sound like you would choose which boy would be in your tent, correct?
A. You could interpret it that way, yes.
Q. And each night you would choose a different boy to be in your tent, that’s what it sounds like, right?
A. Except that I know otherwise.
Q. I appreciate - I appreciate that - that. But you agree with me that’s what it sounds like. I’m not saying that that’s what your testimony is.
A. If you are pushing the limits on the interpretation of that, I suppose, yes.
Q. Okay.
A. But, again, that’s not what I did. It did not happen.
Q. You’ve been very clear on that. I’m not - I’m not - I’m not trying to confuse you. I’m just - my - my point is – or my question for you is, there’s a sentence in that paragraph that makes you sound pretty bad, and you say it wasn’t true, it wasn’t according with your memory. Why didn’t you tell your lawyer to tell the court that’s not what you - what you remember?
A. Again, my position was not to challenge D.V.D because I was very concerned about him having – and I suspected the Crown was in constant contact with him. I did not want to cause any undo hurt by unnecessarily challenging his perspective. I was focused on pleading guilty.
Q. Nevertheless, the sentence in the context of the paragraph sounds like planning, do you agree with that?
A. I think if you were sitting in a victim’s perspective, that would perhaps be their interpretation. Maybe that was the intent. But it doesn’t make me look favourable, that’s for sure, but it certainly, as I say, didn’t happen that way in the sense of targeting or directing or anything like that with terms of where boys should sleep.
Q. I suggest to you that when you didn’t agree with something that was in the agreed statement of fact about D.V.D, you insisted it be bolded and underlined?
A. Major things that I believed were major. I didn’t look at that as being as major.
[63] Cross-examination continued further on this subject:
Q. Okay. So you acknowledged and admitted as true all the facts that were not bolded and underlined?
A. Yes. I - I...
Q. Including....
A. ...I acknowledge my guilt.
Q. Including the line that says, “The accused would have different boy sleep in his tent each night?”
A. I instructed Mr. Derry to sign off on this document, yes, on my behalf.
Q. You admitted that fact as true?
A. In signing off on the document, if that’s what that means, then it’s true.
Q. You were not so concerned about D.V.D’s wellbeing that you were prepared to admit things that were false?
A. No, I - I was prepared to admit things that were false if it would not cause D.V.D any further hurt, or his family.
Q. Then why did you insist that the line at the end of paragraph three on page four be bold and underlined?
A. Sorry. Because I had no recollection of that. Did not recall that happening.
Q. Okay. So that line you’re saying you didn’t know to be false, but you just didn’t recall it happening, is that right?
A. Correct. Yeah. No memory at all.
Q. Pardon me?
A. No recollection at all.
Q. Okay. So there were facts upon which you had no recollection at all and those you insisted be bold and underlined?
A. Correct.
[64] Fifty-nine-year-old David Willoughby testified as a defence witness. Mr. Willoughby is single and has worked as a teacher for many years in Ann Arbor, Michigan. For a number of years commencing in 1980 he volunteered at the Ontario Pioneer Camp.
[65] Mr. Willoughby identified some of the persons depicted in the Exhibit #1 group photo including the complainant and Brent Austring as the person identified by the complainant as being the accused. The witness testified that while the accused did not appear in the photo, he was depicted in the Exhibit #2 period two photo as an individual having a full beard. The witness informed the court that the Exhibit #1 photo was taken 10 days or so before the Exhibit #2 photo.
[66] Mr. Willoughby described himself as a friend of the accused. Although they lost contact with one another for 10 to 12 years, in the 3 or 4 years preceding this trial they had reconnected and went on hunting and fishing trips together. The witness was first asked to think back to the Ontario Pioneer Camp first period canoe trip, for which he participated as a counsellor and trip leader, in March 2016. The accused, saying that he had been charged respecting some inappropriate behaviour, asked him to think back when they were together at the witness’ home. They looked at slides and photos relating to the Camp.
[67] To Mr. Willoughby’s recall, the 1982 period one trip was the only canoe trip he went out on that summer and the first Woodsman Canoe Trip for him and his first trip on the Petawawa River. In subsequent summers, he went on two trips including on the Petawawa River – trips in which the accused did not participate. His twin brother, who went on the 1982 second period trip, joined him in some of the post-1982 canoe trips.
[68] David Willoughby informed the court that during the 1982 period one trip he took the Exhibit #3 photo depicting the 4 tents used in the trip which were carried in a tent pack along with a tarp around a grill.
[69] In his in-chief testimony, Mr. Willoughby stated that the sleeping arrangement “usually” involved 3 persons in a tent. To the witness’ recall, he had 4 persons in his tent in the 1982 trip although that was a little crowded. He does not believe that there was an occasion of 2 persons in a tent. The witness had no recall of the accused directing who was to sleep where. There were no specific sleeping arrangements. Campers tented with friends and the occupants of tents were usually the same each day. The witness had no recall of the accused directing anyone to sleep in his tent.
[70] In cross-examination, Mr. Willoughby repeated that he found it hard to believe that there were instances of only 2 persons sleeping in a tent. The witness was questioned as to his memory and his degree of certainty:
Q. I suggest to you that you had no reason to think about the sleeping arrangements on this trip until you were asked in March 2016, do you agree with that?
A. That’s correct.
Q. And my suggestion to you is that you can’t be sure what the sleeping arrangements were on a trip that was over 30 years ago.
A. I can’t be totally sure. I just know how we usually did things on the trips, how we arranged them.
Q. And there’s evidence on this trial that on at least one occasion Mr. Bent shared a tent with a single camper. What’s your reaction to that?
A. I find it very hard to believe. I certainly don’t recall a circumstance when that would have happened.
[71] Fifty-four-year-old Brent Austring, married with four children, testified as a defence witness. The witness has a master’s degree in theology, years of experience with youth group counselling, and is a field director for an organization in Pincher Creek, Alberta.
[72] Mr. Austring testified that in 1982 he was the Canoeing Director at the Ontario Pioneer Camp. The witness informed the court that, throughout the summer of 1982, he had a pencil-thin moustache and no beard. In Exhibit #1, the witness identified himself as the individual who the complainant had identified as the accused. The witness identified the accused in the Exhibit #2 camp photo as a person with a full beard.
[73] Forty-eight-year-old Robert Andrus testified for the defence. The witness is married with two children. He considers himself to be a close friend of the accused. They acted as the best man at one another’s wedding. In 2010, the witness testified at the accused’s sentencing hearing.
[74] Mr. Andrus testified that he attended the Ontario Pioneer Camp on and off over the years. When he was about age 13, he participated in two camping trips including the Camp’s 1982 period one and period two canoe trips as his first 10-day trips. He met the accused at the camp. The witness identified the accused in the Exhibit #2 photo as the person wearing a University of Iowa shirt. In Exhibit #1, the witness identified the individual third from the left in the back row as Brent Austring.
[75] Mr. Andrus testified that to his recall there were 13 persons on the 1982 period one canoe trip – 10 campers and 3 counsellors. They had 6 canoes and 4 tents carried in a tent pack along with a grill. One of the tents may have been a 5-person tent. According to the witness, each day, or for the majority of the days, he was paired with the accused paddling in a canoe.
[76] Mr. Andrus informed the court that he was first asked to think back upon the subject of the 1982 canoe trip sleeping arrangements at least 5 to 10 years ago. The witness had no recall of the accused directing him or any other camper to sleep in his tent or in any particular tent. Tent-sleeping occupation was not assigned in any way. Over the trip, campers tended to sleep in the same tent. The witness recalled, “doing the math”, that there were 3 tents each with 3 occupants and 4 in the final tent. Generally, counsellors got up first in the morning to start a fire and breakfast preparation. Some campers also arose early to fish.
[77] To Mr. Andrus’ recall, he slept in the accused’s tent “most” nights. (“A lot of times, I stayed in Garth’s tent … most nights”). In cross-examination, the witness gave this evidence:
Q. There may have been nights when you did not share a tent?
A. It’s possible yes.
Q. Otherwise you would have said every single night?
A. That’s right, most nights I believe.
At trial, the witness had no recall as to who else was in the tent with them – it could have been another camper or a counsellor. The witness could not say whether he slept in a tent with 4 occupants. He was not touched inappropriately by the accused. In cross-examination, Mr. Andrus indicated that he recognized the complainant and D.V.D in the Exhibit #1 photo. Shown this photo, with these two campers identified for the witness, and asked if either slept in his tent, the witness responded: “I don’t believe that they did”.
THE COMPLAINANT’S DISCLOSURE
[78] In his in-chief testimony, D.R. gave this evidence:
Q. Do you know someone named D.V.D?
A. I don’t recall, no.
THE COURT: What spelling are you using?
MR. SONE: D.V.D, [spelling redacted], [spelling redacted], Your Honour.
THE COURT: Yes.
A. I’ve never heard that name.
In cross-examination, defence counsel pointed out to the complainant a camper in the Exhibit #1 camp photo followed by this exchange:
MR. DERRY: Q. This young fellow with a – looks like a plaid shirt and dark hair?
A. Mm-hmm.
Q. Do you recognize that person?
A. No, not particularly.
Q. And we’re going - there’s going to be, I want to be fair to you, evidence that that’s D.V.D.
A. Okay.
Q. Does that help you?
A. No.
Q. Because you were asked by Mr. Sone yesterday if that meant anything to you whatsoever. You said no?
A. Correct.
Q. Even though you were out on the camping trip for anywhere from 10 days to 2 weeks, you don’t know ….
A. No.
Q. Or the name?
A. No.
[79] D.R. testified as to the course of his disclosure to the police:
It’s always been eating me alive inside what happened and it’s always been disturbing to me and upsetting.
[80] According to the complainant, over the years, he would “bump into people” who had been on the 1982 canoe trip. Although “no one really came out and said exactly what happened”, there were “undertones” about the situation, but never with any details:
John Watt had a situation with Garth Bent and everyone would kind of go, of, yeah, I’ve heard about that type of thing, or John Cowan, you know, said that Garth tried something on him.
[81] In cross-examination, the complainant spoke of rumours or innuendo as a teenager “[j]ust from sort of [the] playground” that other boys had had experiences with the accused of a sexual molestation nature. There was no frequent discussion of the subject with Watt and Cowan. He recalled no specifics of any such discussions. The rumour mill consensus was that the accused seemed to be a creep. To D.R.’s recall, the discussion was “general” and that “no one really came out and said exactly what happened”- it was said that the accused had taken boys to his tent and fondled them.
[82] The complainant testified that late one night, in 2014, as he was sitting with his wife, he “Googled” Garth Bent’s name. A Toronto Star article came up stating, without details, that he had been charged with a sex crime and that any victim or person with information should call the provided Peel Regional Police Service phone number. He could not believe that somebody was actually standing up to the accused and taking him to court. D.R. described his reaction:
… and I was, like, you know what, I’ve got to be stronger and I got to stand up, get this off my chest. Whatever happens, happens. I - you just get a bit older and you - you don’t seem to care anymore what people think of what’s happened to you. In this circumstance you feel horrible inside and I just said, screw it, I’m going to - I’m going to go and tell my story. And so I picked up the phone and left them a message and they called me the next day.
ACCUSED’S CONDUCT FOLLOWING THE JULY 1982 CANOE TRIP
[83] In his in-chief testimony, the accused described his resignation as a St. Bride’s Church youth worker and his decision not to return to the Ontario Pioneer Camp after the summer of 1982:
Because … I recognized that I needed to no longer work with children in 1982.
I resigned my position because I felt I should no longer be working with … youth.
I made a decision to … get out of youth work…
Q. And why was that?
A. Because I … of the incidents that we’re speaking of today.
[84] In cross-examination, the subject was again raised:
Q. And I think you said the reason why you resigned was because of the inappropriate contact you had with - with children?
A. I was very troubled with my behaviour, yes.
Q. And you wished to discontinue your volunteer activities involving children?
A. I did, yes.
Q. That’s why you resigned?
A. Yes.
Q. Okay.
A. I felt it was inappropriate for me to continue.
Q. Did you stay away from children entirely after that?
A. Yes, for - for - for many years. On one occasion I was cajoled into - into speaking at Ontario Pioneer Camp on one occasion after that. But following that I ended everything. That was in ‘86 I believe.
Q. Other than that one occasion during the - during the period in the 1980s following 1982 in the summer you were avoiding having contact with children, correct?
A. Correct. Yes.
Q. Was it the incident involving D.V.D. that led you to decide to discontinue your volunteer activities with the children?
A. Yes.
Q. When did you make that decision to discontinue your activities with - with youth?
A. Prior to the next semester. I wanted to give St. Bride’s adequate time to recruit another youth worker and I was given that courtesy. But I made that decision that I needed to get out.
Q. Was it after you returned to Mississauga from Ontario Pioneer Camp?
A. I think I was, you know, mulling it over prior to that and then yes, you know, probably the end of - end of July after that second session. There was a month to give notice to decide what to do next.
Q. Did you have - did - did you go to D.V.D’s home for a two week period in September, October of 1982?
A. Yes.
Q. How does - help me understand how that accords with your evidence about discontinuing activities with youth?
A. 1982 was when I got out of youth work and as you heard from David Willoughby, no longer went on a canoe trip or had involvement with Pioneer Camp and I resigned from my position at St. Bride’s. You know, in terms of - of you questioning me, 1982 was the year I remember, you know – this was not formal youth work. Now, I know that’s a fine line. I was - I was invited by the parents to - to care for them at that time, but you know, other than that I - I was done. And that was probably and awkward acceptance on my behalf.
Q. Okay. This was the same child, D.V.D, who you’d had a sexual encounter with in the summer - that very summer, correct?
A. Yes.
Q. And after you had made a - after you say you had made a decision to distance yourself from youth by discontinuing your volunteer activities, you agreed to babysit, to - to tend the house while the parents were away for a period of time?
A. Yeah, it was an awkward thing to say no to people, you know. And I was still working through this confusion in my own life, but you know, I recognized I needed to - to get out of this work with youth as much as possible. And that’s where my frame of mind was at the time.
Q. So you put yourself back in a position of trust in relation to the same youth who you had had that interaction with in the summer time?
A. That’s - that’s the agreed upon statement of fact, yes.
Q. Okay.
A. I can’t deny that.
Q. And that’s what happened?
A. Yes.
[85] In his in-chief testimony, Mr. Bent further addressed the facts of the transactions to which he pled guilty. In 1993, because he felt “awful and ashamed”, he contacted C.P. requesting a face-to-face meeting in order to offer an explanation and an apology. In addition, after it taking a long time to track down B.L., the accused took the same approach meeting the victim in Vancouver where he resided. Both victims offered forgiveness when requested.
[86] According to the accused’s evidence, when D.V.D filed a complaint with the Ontario Pioneer Camp through his parents, and the accused was confronted by the camp director in 1986 or 1987, he immediately acknowledged his actions to the director and wrote letters to the victim and to his parents apologizing. He subsequently met with the victim on a number of occasions in 2003 including with D.V.D’s counsellor.
[87] The accused testified that he underwent about 6 months of counselling in 1984 which he considered helpful in understanding how the type of behaviour he had exhibited could harm others.
POSITIONS OF THE PARTIES
The Crown
[88] Mr. Sone submitted that the complainant’s evidence was credible and reliable. The witness acknowledged lack of memory or gaps in recall where they existed. Counsel noted the passage of time and the complainant’s young age when the alleged assaults occurred as reasonably explaining unremembered details or inconsequential errors in his testimony. Counsel noted D.R.’s genuine emotion as, at one point, he paused and teared-up in answering questions.
[89] Crown counsel submitted that the complainant had no motive to fabricate allegations of indecent assault by Mr. Bent. No animus existed. Counsel noted that the defence did not suggest any such motive existed.
[90] As to the Mississauga allegations, it was submitted that considering the complainant’s evidence as a whole, he did not believe that the accused’s touching, as he described it, was an accident. The touching, of some seconds’ duration, occurred on two occasions with a cupping of the youth’s genitals. The complainant’s reaction was that he had been touched in a manner quite unlike during other wrestling experiences.
[91] Crown counsel submitted that the complainant’s account of being indecently assaulted twice during the July 1982 canoe trip was a coherent and detailed description of events. Counsel argued that a finding by the court that the accused had earlier indecently assaulted the complainant in Mississauga would permit the inference that the accused was intentionally escalating physical familiarity with the complainant.
[92] Mr. Sone submitted that the extrinsic misconduct evidence respecting D.V.D strengthened D.R.’s evidence of also being indecently assaulted in the same 1982 canoe trip having particular regard to the very similar circumstances of the sexual transactions described by the two complainants. Counsel noted that the similarities defy coincidence and could not be the product of D.R., as a teenager, hearing general rumours about the accused’s sexual proclivities. There is no question of tainting. It was submitted that the complainant’s evidence was not a false memory or contrived fabrication.
[93] Crown counsel submitted that the complainant’s misidentification of the accused in Exhibit #1 does not detract from his reliability and does not reasonably raise any issue of mistake as to who sexually assaulted him. Counsel further argued that the complainant’s trial evidence relating to the “whoa” comment, a fact not included in his police statement, is of limited relevance in light of D.R.’s explanation respecting this issue.
[94] Mr. Sone took the position that the complainant’s delay in coming forward, under the circumstances described in his testimony, is irrelevant to his credibility and reliability.
[95] Crown counsel submitted that the accused’s evidence should be rejected as lacking in credibility. The accused’s unconvincing effort to resile from the passage in the 2009 Agreed Statement of Facts stating that he nightly directed particular campers to share his tent, in particular impacted upon the believability of his evidence. The accused’s testimony of discontinuing contact with youth by the end of August 1982 was untrue in light of his babysitting/housesitting the V.D. boys in the fall of 1982. It was submitted that the accused’s evidence relating to inviting youths back to his Mississauga home shifted back and forth during his testimony.
[96] Mr. Sone argued that while other defence witnesses had not set out to deceive the court, their association with the accused, and the efforts, over 30 years later, to think back to inconsequential matters such as camp sleeping circumstances, significantly reduces the reliability of their recall. In any event, leaving to the side that it is an accepted fact that the accused assaulted D.V.D during the 1982 canoe trip, even if Robert Andrus shared the accused’s tent most nights, this does not mean that the accused could not have sexually touched D.R..
The Defence
[97] Mr. Harris submitted that in assessing the prosecution’s discharge of proof beyond a reasonable doubt, the present case is a novel instance of both Garth Bent and D.R. being “apparently honest” – both believe their positions honestly, making proof of the allegations beyond a reasonable doubt virtually unattainable. Counsel frankly stated that because the defence could point to no aspect of the complainant’s testimonial account questioning his credibility, the key issue is reliability.
[98] It is said that the court is being invited to convict on momentary acts from over 30 years ago lasting mere seconds. The distortions of time are a concern. It was submitted that the complainant has shaky, unreliable memories – in effect, false memories although it cannot be said with certainty as to how they developed or exactly when they did.
[99] Mr. Harris pointed to the vigorous rumour mill over time after the 1982 canoe trip suggesting that the accused was a creepy, child molester – information, the substance of which D.R. has no precise recall, coming to the complainant acting like collusion and diminishing the force of the similar fact evidence.
[100] It was submitted that it is “unusual” that the complainant did not unburden himself to anyone previously. Any significant delay impacts upon memory making the infiltration of rumours more likely to distort accurate recall and to lead to false memories. D.R.’s testimony as to his attempts of suppression of memory of events compounds the inaccuracy of his memory.
[101] As to the Mississauga allegations, Mr. Bent’s evidence of denial ought to be accepted or at least raise a reasonable doubt as to their occurrence. The complainant was vague as to the circumstances of the alleged touching for example who else was present. As well, the brevity of the described conduct, the context of roughhousing, and D.R.’s acknowledgement that the touching could have been accidental, all serve to defeat the Crown’s proof of these charges. On the whole of the evidence, there is no case to be made for count-to-count admissibility of the Mississauga and Huntsville allegations.
[102] Mr. Harris submitted that the court should be concerned about significant unexplained omissions from the complainant’s videotaped statement to the police relating to the Huntsville allegations including the “whoa” comment, the “What’s the matter?” statement, and the alleged fondling of his buttocks in the second tent occurrence. These circumstances depreciate the reliability of the complainant’s account.
[103] Counsel noted other factors impacting upon the reliability of D.R.’s testimony. For example, there was a photo misidentification of the accused. There was said to be no fear of the accused at the camp despite the alleged occurrence of the Mississauga events.
[104] It was submitted that the V.D. similar fact evidence is not close to raising a conclusive inference – despite points of similarity, there are no startling points of similarity and dissimilarities exist.
[105] It was further argued that Mr. Bent’s “solid” evidence ought to be accepted. He voluntarily sought out all victims of his sexual touching, before complaints or charges, to make amends and seek forgiveness. The conduct did not include D.R. and this buttresses the accused’s credibility and reliability. It is said that the accused presented as a good witness with no significant credibility issues. The accused adequately explained the context of permitting the sentence to remain in the 2009 Agreed Statement of Facts about which he was extensively cross-examined.
[106] Counsel submitted that the credible evidence of other defence witnesses made it exceedingly unlikely that the accused was ever alone in the tent with the complainant. The testimony of these witnesses confirmed that no tent had less than 3 occupants and that the accused did not direct campers where to sleep.
ANALYSIS
General Principles
Credibility/Reliability
[107] "Credibility is a central issue in many criminal cases": R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595, at para. 55. The court may believe all, none or some of a witness' evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. Francois, 1994 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result), at p. 318; R. v. Doell, 2016 ONCA 350, at para. 7; R. v. M.R., 2010 ONCA 285, at para. 6. Accordingly, a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. B.H., 2015 ONCA 642, at para. 22; R. v. Howe, 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44.
[108] The vast majority of sexual assault prosecutions turn on the evidence of the two principals – the complainant and the accused: R. v. M.(S.C.), [2007] O.J. No. 1624 (C.A.), at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), [2001] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.
[109] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87. However, as recognized in R. v. Chittick, 2004 NSCA 135, [2004] N.S.J. No. 432 (C.A.), at paras. 23-25:
It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.
An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
See also R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 47 (leave to appeal refused [2007] S.C.C.A. No. 69).
[110] It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.), at p. 409. In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore (2004), 2004 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at p. 550:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".
See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.), at paras. 9-17. However, “[a]n outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence”: J.J.R.D., at para. 53; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66; R. v. T.M., 2014 ONCA 854, at para. 68 (leave to appeal refused [2015] S.C.C.A. No. 110).
[111] The court must be satisfied beyond a reasonable doubt on the issue of credibility and reliability where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 1997 1150 (ON CA), 101 O.A.C. 193 (C.A.), at pp. 207-8; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.), at para. 1 (affirmed 1995 95 (SCC), [1995] 2 S.C.R. 415). Where there are significant inconsistencies or contradictions within a principal Crown witness' testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal to S.C.C. refused, [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.), at paras. 8, 9; R. v. Norman (1993), 1993 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4.
[112] Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom - this includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57, affd 2012 SCC 72, [2012] 3 S.C.R. 726. However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; Taniwha v. The Queen, [2016] NZSC 121, at paras 1, 26-39; R. v. G.G. (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot sustain a finding of guilt: R. v. K.(A.) (1999), 1999 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.
[113] The fact that a complainant pursues a complaint cannot of course be a piece of evidence bolstering his or her credibility -- otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), 1994 8756 (ON CA), 35 C.R. (4th) 340 (Ont. C.A.), at para. 3; R. v. Islam, [1999] 1 Cr. App. R. 22 (C.A.), at p. 27.
[114] Juries are routinely instructed that the contents of a question of counsel to a witness are not evidence unless the witness agrees with the suggestion or proposition in the question: R. v. Zebedee (2006), 2006 22099 (ON CA), 211 C.C.C. (3d) 199 (Ont. C.A.), at paras. 113-4 (leave to appeal refused, [2006] S.C.C.A. No. 461); R. v. Bradey, 2015 ONCA 596, at para. 47.
[115] To the extent that credibility or reliability assessment demands a search for confirmatory evidence for the testimony of a principal Crown witness, such evidence need not directly implicate the accused or confirm the complainant's evidence in every respect - the evidence should, however, be capable of restoring the trier's faith in the complainant's account: Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.), at pp. 5-6; R. v. Betker (1997), 1997 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.), at p. 429 (leave to appeal refused, [1998] 1 S.C.R. vi); R. v. Michaud, 1996 211 (SCC), [1996] 2 S.C.R. 458, at p. 459; R. v. K.M., 2012 ONCA 319, at para. 38.
[116] It may be that in the circumstances of a particular case, the defence wishes to raise the issue of delayed complaint as counting against the veracity of the complainant's account of assault. The significance or evidentiary relevance, if any, of the complainant's failure to make such a complaint is contextual and will vary from case to case depending upon the trier of fact's assessment of the evidence relevant to the failure to make a contemporaneous complaint: The Queen v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at pp. 64-7; R. v. M.(P.S.) (1993), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-409; see also, R. v. H., [2011] EWCA Crim 2753, at para. 6.
[117] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.), at p. 300; R. v. Greer, 2009 ONCA 505, at para. 5; R. v. Prasad, [2007] A.J. No. 139 (C.A.), at paras. 2-8; K.(A.), at p. 173; R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at paras. 4, 5. I make this observation, sensitive to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of a principal Crown witness. Evidence of a witness' motive to lie may be relevant as well to the accused qua witness: R. v. Laboucan, 2010 SCC 12, at paras. 12, 15, 22; R. v. Murray (1997), 1997 1090 (ON CA), 99 O.A.C. 103 (C.A.), at paras. 11-14.
[118] The testimony of a young witness is to be understood with an eye to common sense as exactitude and detail may be missing from a child’s recall as the world is experienced differently from an adult: B.(G.) v. The Queen (1990), 1990 7308 (SCC), 56 C.C.C. (3d) 200 (S.C.C.), at pp. 219-220; Marquard v. The Queen (1993), 1993 37 (SCC), 85 C.C.C. (3d) 193 (S.C.C.), at p. 201; R. v. H.C. (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45 (Ont. C.A.), at para. 42. The same approach with such details as dates and the like is warranted respecting a mature witness testifying to events experienced as a child – the trier of fact assesses an adult witness’ current state of memory in determining reliability bearing in mind that memory of an historical event would have formed when the witness was a youngster: R. v. C. K., 2016 ONCA 66, at paras. 14–25 (appeal as of right filed [2016] S.C.C.A. No. 62).
[119] Even with a youthful witness’ testimony, the court’s common sense approach may require caution taking into account the strengths and weaknesses of the particular witness’ evidence in the context of a specific case: Marquard, at pp. 221-3; The Queen v. W.(R.) (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.), at pp. 142-4; R. v. Keeper, [2000] O.J. No. 1407 (C.A.), at para. 4; R. v. Reekers, [1999] O.J. No. 3415 (C.A.), at para. 1; R. v. Stephen (D.), [1996] O.J. No. 441 (C.A.), at para. 3. As a general rule, children will have a better and more accurate recollection of events shortly after they occurred than they will some weeks, months or years later: R. v. F.(C.C.) (1997), 1997 306 (SCC), 120 C.C.C. (3d) 225 (S.C.C.), at pp. 233-4.
[120] Whatever enlightened approach is taken respecting a child’s ability to perceive and recall (or an adult’s ability to recount experiences as a child), the standard of proof cannot be reduced below that of cases involving adults: B.(G.), at p. 219; W.(R.), at p. 143; R. v. Markell, [2001] O.J. No. 1813 (C.A.), at paras. 1-2; Keeper, at para. 4.
Circumstantial Evidence
[121] In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, for example demeanour or opportunity, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn while always having regard to the scope of inferential bridges or gaps the trier is invited to make.
[122] Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier-of-fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70.
[123] In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative “innocent” explanations other than the prosecution’s theory of guilt, the court is not limited to inferential explanations based on “proven facts” but rather may take into account, as to whether reasonable doubt exists, alternate rational possibilities grounded in the evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 57-8; Fontaine v. Loewen Estate, 1998 814 (SCC), [1998] 1 S.C.R. 424, at para. 33; R. v. Bui, 2014 ONCA 614, at paras 22-9; R. v. Campbell, 2015 ABCA 70, at paras. 51-3; R. v. Dipnarine, 2014 ABCA 328, at paras. 22-28; R. v . Pryce, 2014 BCCA 370, at paras. 6-12; R. v. Maxie, 2014 SKCA 103, at para. 35; R. v. Robert (2000), 2000 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.), at paras. 14-25.
[124] Further, while there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences: R. v. Fraser, 2016 BCCA 89, at para. 73; R. v. Mufuta, 2015 ONCA 50, at paras. 22, 26, 47-9; Griffin, at para 35; R. v. C.(D.) (2012), 2012 SCC 48, 290 C.C.C. (3d) 64 (S.C.C.), at paras. 25, 28; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont.C.A.), at paras. 35, 42.
[125] In the present case, the accused advanced through his own testimony that his past course of arguably good conduct of acknowledging sexual misconduct to his victims, and not to D.R., was a circumstance supporting his denial of offending against the complainant. In R. v. Dhillon (2002), 2002 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont. C.A.), at para. 24, the court noted that a prosecution witness’ current evidence was not enhanced by the oath-helping fact that 90 percent of the time he pleaded guilty wherever he had been charged. In R. v. Santhosh, 2016 ONCA 731, at paras. 33-39, the court recognized that the rigidity of the rule against oath-helping does not generally apply to an accused person testifying in a criminal proceeding.
[126] Evidence of witnesses called by the defence, whether described as character or simply circumstantial evidence, that the accused did not engage in sexual relations with other young persons “is of virtually no probative value”: R. v. F.W.T. (2001), 2001 24128 (ON CA), 151 C.C.C. (3d) 50 (Ont. C.A.), at paras. 44-51.
[127] Recognizing that “[c]oincidence, as an explanation, has its limitations”, similar fact evidence may be admitted in a criminal trial as a particular form of circumstantial evidence: R. v. Handy (2002) 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.), at para. 45. That said, such evidence is presumptively inadmissible and is only “exceptionally” admitted where the Crown discharges its burden of establishing the case for admission: Handy, at para. 60; R. v. B.(C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, at p. 732. Similar fact evidence is therefore admitted by exception where its probative value exceeds its prejudicial effect and the test for admission is the same whether the evidence is extrinsic or arises from the proof of other counts in the indictment: R. v. Moo, 2009 ONCA 645, at para. 97.
[128] The admissibility of similar fact evidence, and specifically the balance of probative value against prejudicial effect, depends on identification of the purpose or material issue for which the evidence is sought to be admitted – issue identification is an important control. As the proponent of admissibility, the Crown must establish “the specific factual issue which the evidence is probative of the improbability of coincidence”: R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 72.
[129] Mere proof of general disposition or discreditable character at large amounts to moral prejudice only. “The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated”: Handy, at para. 74. For example, is the evidence proffered to prove the identity of the person who committed the offences, to prove the actus reus, to rebut or refute coincidence or innocent explanation or mistake, etc.? Where properly admissible, the evidence may “show a pattern of similar behaviour that confirm[s] each complainant’s testimony”: R. v. B.(T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21 (C.A.), at para. 22; R. v. Thomas (2004), 2004 33987 (ON CA), 72 O.R. (3d) 401 (C.A.), at para. 43.
[130] The “principal driver of probative value…is the connectedness (or nexus) that is established between the similar fact evidence and the offences charged”: Handy, at para. 76. Can it be said that a sufficiently “high degree of similarity between the acts renders the likelihood of coincidence objectively improbable”? (R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 43). “[T]he search for similarities is a question of degree”: Handy, at para. 122. The cogency of the evidence, derived from the improbability of coincidence, increases as the fact situation moves further to the specific end of the spectrum – also described as an “observed pattern of propensity operating in a closely defined and circumscribed context”: Handy, at paras. 87, 90, 110. Where the acts do not have the high degree of similarity that would render the likelihood of coincidence objectively improbable, the evidence will be inadmissible: Last, at para. 34; Arp, at para. 43.
[131] To found admissibility, the prosecution cannot hope to rely upon an impermissible general disposition inference (R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 18; U.C., 2009 ONCA 367, at para. 41), similarities of a “general character” (R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 24), “generic” similarities commonly seen in the commission of the alleged crime(s) (R. v. Cresswell, ONCA 95, at para. 8; R. v. R.B. (2003), 2003 13682 (ON CA), 68 O.R. (3d) 75 (C.A.), at paras. 49, 64, 69 (aff’d 2004 SCC 69, [2004] 3 S.C.R. 503)), or facts at the “vague end of the spectrum”: Handy, at para. 85. However, where the evidence gives rise to an inference of a specific disposition, for example, “a specific disposition to sexually abuse his companion’s two young daughters” (U.C., at para. 41) or “to show the appellant’s specific propensity to engage in sexual misconduct with boys in his care who came to him in a vulnerable condition” (R. v. B.(R.) (2005), 2005 30693 (ON CA), 77 O.R. 171 (C.A.), at para. 11), the evidence may support a legitimate chain of reasoning and a “persuasive degree of connection” justifying a similar fact ruling in favour of the prosecution: R. v. L.T. (2005), 2005 792 (ON CA), 196 O.A.C. 394 (C.A.), at para. 16. Such was the case in the L.K.W. case where the court stated at paras. 5, 52, 91:
According to the evidence of E.M., T.M., P.M., R.M. and the appellant’s natural son, K.T.W., the appellant exerted violent control over the family. He systemically intimidated and brutalized his wife and children and engaged in extreme acts of violence and cruelty to enforce his will. In short, he ruled with an iron fist and brooked no opposition. From his perspective, E.M. and the children were his personal chattels to do with as he saw fit.
The charges of assault relate generally to the regular beatings the appellant inflicted on his three sons to punish and discipline them. Sometimes, the appellant would use his hands, striking the boys on various parts of their bodies and leaving them bruised. On other occasions, he would use a piece of wood wrapped in electric tape and smack their hands.
For present purposes, I see no need to explain in detail the various uses which the jury was entitled to make of the evidence at large in deciding the appellant’s guilt or innocence on a particular count. Suffice it to say that the evidence as a whole could be used for a variety of purposes, including:
to establish the appellant’s motive for committing the offences. (See R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 at 106 (Ont. C.A.));
to reveal the true nature of the appellant’s relationship with his children and stepchildren. (See R. v. Litchfield (1993), 1993 44 (SCC), 86 C.C.C. (3d) 97 at 116 (S.C.C.));
to explain the reason for delayed disclosure and the failure on the part of E.M. and P.M. to leave abusive relationships. (See R. v. F. (D.S.), supra, at 107 and R. v. B. (F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 at 137 (S.C.C.));
to prove a pattern of abusive conduct on the appellant’s part towards his children, thereby lending credence to the testimony of the individual complainants and belying the defence of innocent association. (See R. v. B. (F.F.), supra, at 137; R. v. C.R.B. (1990), 1990 142 (SCC), 55 C.C.C. (3d) 1 at 27 and 28 (S.C.C.) and R. v. Litchfield, supra at 116 and 117); and
to rebut the appellant’s self-portrayal as a man of high moral and ethical character and impugn his credibility at large. (See R. v. McNamara, supra, at 350).
[132] Evaluation of the degree of similarity of the acts may be assisted by consideration of a number of factors including:
(1) proximity in time of the similar acts
(2) extent to which the other acts are similar in detail to the charged conduct
(3) number of occurrences of the similar acts
(4) circumstances surrounding or relating to the similar acts
(5) any distinctive feature(s) unifying the incidents
(6) intervening events
(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.
(Handy, at para. 82)
Depending upon context and the degree of similarity, evidence of a single discreditable act may be sufficient to evidence a course or pattern of conduct (see, for example: R. v. S. (T.G.) (2009), 2009 ABQB 181, 471 A.R. 42 (Q.B.), affd (2010) 2010 ABCA 390, 265 C.C.C. (3d) 461 (Alta. C.A.), at paras. 3-8; R. v. Bond, [1906] 2 K.B. 389 (C.C.R.)), although it has been observed that it will be rare for a single incident to evidence a “pattern” (R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 75), and that “if instances are multiplied, the weight of the evidence is greatly increased, and if a system is shown it may be irresistible” (Bond, at p. 43 per Jelf, J.), and that reliance upon a single extrinsic similar transaction may be so tenuous as to afford negligible probative value: R. v. Batte (2000), 2000 5751 (ON CA), 145 C.C.C. (3d) 449 (Ont. C.A.), at pp. 479-480.
[133] Similarity assessment requires attention to the existence of material dissimilarities between the transactions: Handy, at para. 123. Where the similarities are particularly strong or numerous, attendant dissimilarities may not defeat the legitimacy of the inference sought to be drawn – see, for example, U.C. (two sisters sexually abused – fondling and touching of both but sexual intercourse with only one); Cresswell (single incident of alleged abuse with some complainants and repeated acts with others); B.(R.) (2005) (no anal intercourse with two of the complainants).
[134] Account must be taken of the prospective prejudicial effect on the trier(s) of fact should the similar fact evidence be admitted and available for circumstantial inference reasoning. The risk of wrongful conviction is inherent in propensity evidence. Regard must be had to the risk of moral prejudice including the drawing of an inference of guilt from general disposition or discreditable tendencies. As well, reasoning prejudice warrants consideration including distraction of the trier(s), for example, on account of the impact sentiments of revulsion, consumption of time, etc. The risks of prejudice are generally attenuated in a judge-alone trial: B.(T.), at paras. 33, 36; R. v. J.G.B., 2010 BCCA 2, at para. 25; R. v. T.C. (2005), 2005 371 (ON CA), 74 O.R. (3d) 100 (C.A.), at para. 63; B.(T.), at paras. 33, 36.
[135] In the final analysis, the balance of probative value against prejudicial effect goes to the very fairness of the trial.
[136] With regard to similar fact evidence, the “existence of collusion rebuts the premise on which admissibility depends” (Handy, at para. 110) as the probity of such evidence arises from the improbability of two or more witnesses independently or coincidentally giving the same evidence: U.C., at para. 40. Where there is some evidence of actual collusion, or at least an air of reality to it, the Crown must satisfy the trier of law as a condition precedent, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion: Handy, at para. 112.
[137] Dictionary definitions of collusion generally raise notions of secret agreement, plotting or conniving, or conspiring together for a fraudulent or underhanded purpose. On occasion, the facts of a case may raise a concern about “innocent collusion or influencing” or the possibility of “innocent tainting”: R. v. M.B., (2011), 2011 ONCA 76, 267 C.C.C. (3d) 72 (Ont. C.A.), at paras. 18-20; R. v. Baggio, 2011 ONCA 80, at paras. 1-5; R. v. J.F. (2003), 2003 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77.
[138] To the extent that the jurisprudence dealing with collusion speaks of collusion “or some other form of tainting” (U.C., at para. 40; B.(T.), at para. 22), or of other non-collusive conduct (B.(R.) (2005), at para. 5 (no evidence complainants colluded with each other “or even discussed the appellant’s misconduct with each other”)), the court, in deliberating upon the admissibility issue, should be alive to instances of witness contamination, deliberate or innocent, of a sufficiently serious nature as to threaten the true existence of coincidence.
[139] The evidence may disclose limited contact between complainants as in R. v. L.G., 2009 ONCA 895, at para. 5. Opportunity for collusion may well be the context “in many cases alleging sexual abuse with multiple complainants” (Handy, at para. 111) and communication among sibling complainants is “almost inevitable”: R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.), at para. 43. But “[t]he issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually be best left to the jury”: Handy, at para. 112; R. v. Dueck, 2011 SKCA 45, at paras. 51-8.
[140] Accordingly, there may exist the opportunity for collusion, or the potential for collusion, without the evidentiary record disclosing an air of reality to collusion having in fact transpired. Where the trial judge is satisfied that the reliability of the evidence is not jeopardized by collusion or similar tainting, the trier(s) of fact will then decide the ultimate worth of the evidence: Handy, at para. 112; U.C., at para. 19. At trial, of course, it is “not incumbent on the defence to prove collusion”: Handy, at para. 112.
Opportunity to Commit Offence
[141] An accused’s opportunity to commit an alleged offence, both in physical and temporal terms, is a circumstance which may achieve particular importance in some cases. Closely related is consideration of the reasonableness of the exercise of any such opportunity given the associated risks of detection: see R. v. Dimmick, 2015 ONCA 402, at paras. 5-6; R. v. N.L.P., 2013 ONCA 773, at paras. 28-31, 75; R. v. A.S. (2002), 2002 44934 (ON CA), 165 C.C.C. (3d) 426 (Ont. C.A.), at para. 37; R. v. C.P., [2004] O.J. No. 4732 (C.A.), at para. 14 (leave to appeal refused [2005] S.C.C.A. No. 44).
Fact-Finding
[142] The prosecution of historical sexual offence allegations raises particular proof issues not the least of which are witnesses’ diminished memory of details and frequently an absence of objective corroborative evidence supporting or detracting from a complainant’s account. Deciding such a case on the basis of acceptance of the testimony of the principal witness with the apparent best memory is inconsistent with application of the concepts of proof beyond a reasonable doubt and the presumption of innocence.
[143] This was a short trial. Turning first to the Mississauga allegations, the complainant described two similar brief instances of genital touching over the clothing. This conduct is said to have occurred at the accused’s residence during playful wrestling when D.R. was 9 to 11 years of age and at least two years prior to the July 1982 canoe trip. There is no evidence of animus or motive to fabricate a sexual allegation against the accused.
[144] Garth Bent denied any roughhousing at his home with the complainant and maintained in his evidence that youths in the range of 9 to 11 years of age were not invited back to his residence from St. Bride’s as the church youth groups with whom he worked were 13 years of age and older. In effect, the accused’s central position was that no opportunity existed for the intimate touching to have transpired with the complainant. Mr. Bent denied indecently assaulting the complainant in his residence.
[145] No witnesses beyond D.R. and Mr. Bent testified at trial with information supporting or detracting from the witnesses’ respective accounts of events over three decades ago.
[146] At one point in his evidence, Mr. Bent was prepared to concede that the complainant may have accompanied his older sister to his home. Implicit in the accused’s testimony is that if the complainant was present in his residence, any wrestling that may have occurred may have been with a high school student staying at the accused’s home. In other words, the accused has not advanced a scenario of accidental genital touching in the course of wrestling with D.R..
[147] D.R. was vague as to contextual details relating to the transactions he described to the court. For example, he could not say who else may have been present, whether any other adult was there, whether other youths too were engaged in wrestling, or whether he accompanied his sister. Significantly, the complainant’s account of very brief touching during a fireman’s wrestling hold, despite his present subjective view, left open the possibility of accidental touching of his genital area during this manoeuvre.
[148] The evidence relating to the camp allegations carries no probative force in determining the issue of proof of the Mississauga allegations.
[149] On the whole of the trial record, no trier of fact, properly instructed, could confidently determine with the necessary accuracy the truth of the complainant’s allegations of intentional sexual touching amounting to indecent assault in the accused’s residence.
[150] Turning to the second count, D.R. provided his evidence of the two in-tent indecent assaults. There was no uncertainty as to the core details of the sexual touching he says transpired. In describing the alleged indecent assaults, the complainant presented as thoughtful and credible. At least at one point during his evidence of sexual touching by the accused in the darkness of a camp tent, D.R. became visibly emotional. Indeed, the defence did not seek to challenge the honesty of the complainant’s reported recall.
[151] To repeat, there is no evidence whatsoever of D.R. harbouring any motive to falsely accuse Mr. Bent. It is said that, likely on the basis of an implanted false memory, the complainant has come to believe that he was victimized by the accused. Recognizing no onus at all on the defence to identify the possible origins of the complainant’s unreliability, it was nevertheless suggested that the post-trip rumour mill about the accused’s propensities and creepy personality may have tainted the accuracy of the complainant’s memory as to whether he was actually the subject of sexual touching by the accused in 1982.
[152] On the whole of the evidence, including assessment of the content and presentation of the evidence of the principal witnesses, and the relevant evidence capable of corroborating their respective testimonial accounts, the court rejects collusive contamination of D.R.’s memory from post-trip rumours and discussion with others.
[153] There is no evidence that the complainant spoke to D.V.D before, during or after the canoe trip. He was not described as a friend from the neighbourhood. There is no evidence to suggest that the details of that victim’s experience with the accused had become public information or the subject of rumour content. The complainant’s evidence is accepted that such gossip and discussions were at a level of generality only, with no specific details of any sexual impropriety on the part of the accused.
[154] D.R. described two indecent assaults at the hands of the accused with differing facts as to how each transaction terminated. With no evidence from Watt, B.L., Cowan or others supporting the existence of any detailed rumours, and no suggestion of the complainant discussing matters with D.V.D or having access to the particulars of his allegations or the 2009-2010 legal proceedings, there is no reason to doubt D.R.’s evidence that he was unfamiliar with the details of what may have transpired between the accused and any other youth.
[155] The complainant was unable to recall the number of sleeping tents taken on the July 1982 period one canoe trip. D.R. misidentified the accused in the Exhibit #1 camp photo. It may be that both Willoughby twins did not participate, as recalled by the complainant, in that trip 34 years ago. Questioned upon some subjects, the complainant acknowledged gaps in his memory. D.R. also made it clear to the court that he has made deliberate efforts to suppress memories of the events on the canoe trip.
[156] There is nothing in the fact of the delay by D.R. in reporting his allegations to the police which would give cause to challenge his credibility or reliability. He was aged 13 at the time of the 1982 canoe trip and, on his evidence, in short order effectively terminated the brief sexual touching by an adult in a position of trust and authority. The complainant explained the effect of the internet news article in persuading him to come forward. The complainant was not asked at trial whether over the years he had disclosed the sexual abuse to anyone before speaking to the police in 2014.
[157] I am unpersuaded by certain factors raised by the defence which were said to diminish the reliability of the complainant’s recall of events which actually occurred.
[158] First, it is not unreasonable to expect that, in some circumstances, a victim may focus, in describing to the police what happened to them, the physical intrusion of an abuser as opposed to what may have been said at the time. In any event, the police interviewer’s question of D.R. as to what may have been said was in the context of the back massage he described to the officer. The complainant’s evidence was that the “Whoa, what’s this?” and “What’s the matter?” comments were later in the course of the accused touching his penis during the first canoe trip indecent assault. It was the questioner, in suggesting omission on the witness’ part, who expanded the time frame for any conversation to during “the incident” as opposed to the time of the back massage.
[159] Further, the complainant testified that his buttocks were touched during
the second tent events. Apart from not appreciating the submitted force of the distinction between the accused placing a hand on the complainant’s buttocks under his pajamas and fondling the complainant’s buttocks, the only evidence before the court of buttocks touching and the complainant’s belief that this was reported to the police came from D.R.. The suggestion of the cross-examiner that the complainant did not tell this to the police is simply that, an unadopted suggestion of counsel, and not evidence of facts.
[160] The evidence relating to Mr. Bent’s indecent assault of D.V.D is strongly supportive of the complainant’s account of being indecently assaulted in July of 1982. The similarities include:
(1) both youths were in their early teens and attended a youth group at St. Bride’s Church in Mississauga where the accused was a youth worker
(2) during July 1982, both boys participated in the period one 10-day canoe trip at Ontario Pioneer Camp in the Huntsville area – a trip for which the accused was the trip leader
(3) according to the complainant and D.V.D, the accused would have a different boy sleep in his tent each night of the canoe trip along the Petawawa River
(4) both youths describe the accused initiating physical touching in a tent by a massage of the shoulder area
(5) the accused then proceeded to undertake masturbatory conduct upon each youth.
[161] There are as well dissimilarities between the respective transactions including the timing of the indecent assault (D.R. (night) / D.V.D. (morning)), masturbation of D.V.D. to the point of ejaculation, and the fulfilled request from the accused for the V.D. boy to masturbate him to ejaculation (facts absent from the D.R. allegations).
[162] Despite the dissimilarities, and the existence of only the one extrinsic similar transaction limiting the probative value of a demonstrated pattern of conduct, the two independently reported transactions here are of sufficiently similar character, despite points of dissimilarity, as to defy coincidence and to logically support the inference that the accused used his position of trust and authority as an adult counsellor to take sexual advantage of selected youths in his charge during the July 1982 canoe trip.
[163] Mr. Bent unequivocally denied indecently assaulting the complainant during the 1982 canoe trip. In his testimony, he was certain that he would not have forgotten such conduct.
[164] In support of his defence, the accused advanced the position that he voluntarily contacted each of the victims of his sexual misconduct before complaints or criminal charges existed. He did not communicate with D.R. or his family because he did not victimize the complainant. On the totality of the evidence, the precise chronology of events is not entirely clear. After the accused was confronted by the Ontario Pioneer Camp director in 1986 or 1987 regarding D.V.D’s complaint, he made subsequent approaches to that victim. On Mr. Bent’s evidence, he contacted C.P. in 1993. There was a “long time” tracking down B.L..
[165] At first blush, this evidence may seem to be oath-helping or specific good character evidence of routine admission of wrongdoing – “because I admitted wrongdoing to all my victims but not to you, you were not a victim”. Mr. Sone did not object to the admissibility of this evidence while submitting that it should be afforded minimal weight. The force of this defence evidence, grounded entirely in Mr. Bent’s testimony, has doctrinal aspects perhaps not unlike consciousness of innocence. In any event, I accept that, subject to evaluation of Mr. Bent’s credibility, and the reliability of his reported recall of the identity of every of his victims, this evidence was capable of self-corroborating his denial of indecently assaulting D.R. at the Ontario Pioneer Camp. In the end, the evidence, while given some weight, did not prove significant in determining the credibility of Mr. Bent’s denials.
[166] The accused testified that he “stay[ed] away from children” for “many years” after his time at the Ontario Pioneer Camp in the summer of 1982. He was deliberately “avoiding having contact with children”. The accused was hard-pressed to credibly explain how spending two weeks babysitting D.V.D in the fall of 1982 while his parents were away was consistent with the advanced reason for giving up youth work.
[167] Garth Bent did not present as a credible witness regarding the canoe trip allegations. Aspects of his evidence emerged as rehearsed and strained denials.
[168] While the accused maintained that Robert Andrus slept in his tent “every” night, Mr. Andrus’ recall was that he was only in the accused’s tent most nights and that to his recall, neither D.V.D or the complainant slept in a tent with him. This witness’ evidence, and the admitted presence of the V.D. boy in the accused’s tent, supports the view that, contrary to Mr. Bent’s recall, Andrus was not in his tent every night.
[169] At one point in his testimony, the accused stated unequivocally that there was “no rotation” of tent occupants during the July 1982 canoe trip. Subsequently, he stated that it was possible that there was some occupancy changes on various nights. The accused testified that he could not recall whether the complainant shared his tent at some point during the canoe trip.
[170] Although Mr. Bent testified that typically there were 3 or 4 persons in his tent on a nightly basis, apart from Robert Andrus he could not recall the identity of any other occupant. At a different point in his evidence, the accused acknowledged that D.V.D had slept in his tent.
[171] In his in-chief evidence, Mr. Bent testified that he had no recall of ever getting into his tent with just one other person. In cross-examination, the accused stated that he was unable to say whether there was no one else, or one or two other persons, in his tent when he indecently assaulted D.V.D.
[172] On the subject of Mr. Bent actually directing a camper to sleep in his tent, the court is faced with conflicting evidence. The complainant was clear in his testimony that the accused undertook this approach with him on at least two occasions during the July 1982 canoe trip. This approach by the adult trip leader is consistent with D.V.D’s experience in the period one trip.
[173] Mr. Willoughby and Mr. Andrus, both friends of the accused, first thought back upon the topic of the trip’s sleeping arrangements many, many years after 1982. There is no reason to question the honesty of these witnesses. They had no particular reason to have taken account as to whether on every night there was a 4/3/3/3 distribution of tent occupants as opposed to 4/4/3/2 some nights. The impression in seeing these witnesses testify on this subject is that their respective recalls were shaped by the math of dividing 13 trippers into 4 tents, and perhaps some recollection of canoe trip custom, as opposed to specific recall of each night of the 1982 period canoe trip.
[174] Mr. Bent’s denial of taking a role in determining the occupancy of his tent was transparently unpersuasive and inconsistent with a prior admission on his part. The import of the accused’s evidence in this trial was that he had input into the 2009 Agreed Statement of Facts, he read the final document, and instructed counsel to sign it on his behalf without drawing to counsel’s attention any problem with the sentence reading, “The accused would have a different boy sleep in his tent each night”. Initially in cross-examination, the accused unconditionally adopted this position:
Q. And everything in the agreed statement of fact that is not bold and underlined you admitted as true because you remembered it to be true, correct?
A. At the time, yes.
[175] Pressed vigorously in ongoing cross-examination regarding this particular sentence, the accused introduced the notion of a third type of fact in the Agreed Statement of Facts – beyond (1) remembered and admitted facts, and (2) unremembered but undisputed facts, there were (3) facts acknowledged and admitted as true which were known to be untrue as written. As to this latter category, the accused testified that while he considered D.V.D’s assertion that he had a different youth sleeping in his tent nightly to be wrong, out of concern for not causing additional hurt to that victim he misled a court by representing that he admitted these facts were true when that was not his true position.
[176] In delivery and content, this explanation was simply not believable. The testimonial position adopted by the accused was little more than a less than credible effort to escape the forensic force of the cross-examination focused upon establishing that two youths independently reported that he gave instructions as to who was to occupy his tent – evidence of calculated planning. The accused’s lack of credibility on this point was compounded by his characterization of the sentence as not involving a “major” factor in terms of his culpability, and the accused’s prolonged refusal under questioning to acknowledge that a clear and reasonable interpretation of the relevant sentence was that he had intentionally selected his tent mates nightly. Further, it is not apparent how the accused would recall whether or not he had a part in directing sleeping arrangements while being unable to recall the startling details of the second and third next sentences: “The accused then requested that D.V.D masturbate him. D.V.D complied, and masturbated the accused to the point of ejaculation”.
[177] The court finds as a fact that the accused selected the V.D. boy and the complainant to occupy his tent with a view to satisfying his urge for sexual contact with a pubescent male youth.
[178] Although it is unnecessary to decide, in determining whether the prosecution has discharged its burden of proving guilt beyond a reasonable doubt, either the accused has intentionally misled the court on the subject of reaching out to all of his victims or, in fact, he honestly has no recall of indecently assaulting D.R..
CONCLUSION
[179] The accused is found not guilty of the indecent assault alleged in count #1 of the indictment.
[180] The accused is found guilty of the indecent assault alleged in count #2 of the indictment.
Hill J.
Released: October 14, 2016
CITATION: R. v. Bent, 2016 ONSC 6388
COURT FILE NO.: CR-15-1051
DATE: 20161014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
GARTH BENT
REASONS FOR JUDGMENT
Hill J.
Released: October 14, 2016